COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Omoragbon, 2020 ONCA 336

DATE: 20200601

DOCKET: C67562

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aghayere Justin Omoragbon

Appellant

Christopher Rudnicki, for the appellant

Tanya Kranjc, for the respondent

Heard: In-writing

On appeal from the sentence imposed on April
    2, 2019 by Justice Faye E. McWatt of the Superior Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior
    Court of Justice sitting without a jury, the appellant was convicted of 11 offences.
    He received a global sentence of seven years which the trial judge reduced to a
    net sentence of four years on account of the length and nature of pre-sentence
    custody.

[2]

The appellant applies for leave to appeal the
    sentences imposed at trial. He asks that we reduce the global sentence to one
    of five years so that he will be eligible to apply for parole immediately and
    entitled to statutory release in early August of this year.

[3]

In our view, the appeal fails.

The Background Facts

[4]

We begin with a brief background of the offences,
    the offender, the positions of the parties at trial and the reasons of the
    trial judge for the sentences she imposed.

The Circumstances of the Offences

[5]

Early one morning in June, police officers
    observed a white Mercedes motor vehicle that other officers had attempted to
    stop a few minutes earlier. The officers pursued the vehicle which travelled at
    speeds of 100 km/h in areas in which the posted speed limits were 50 or 60
    km/h.

[6]

After briefly losing sight of the pursued
    vehicle, the officers saw it again and took up the chase. The Mercedes failed
    to negotiate a turn and crashed. The appellant, who was the only occupant, got
    out of the driver's seat and fled on foot. The officers ran after him, but the
    appellant outdistanced them. As he ran, the appellant dropped his wallet. The
    police recovered it. Inside was $940 in cash.

[7]

The officers called for assistance. Police
    searched the area. A police dog found the appellant hiding under a cube van.
    Officers arrested the appellant and searched him incident to arrest. They found
    $670 in cash in the appellant's pockets.

[8]

The police dog also indicated a firearm under a
    vehicle along the route the appellant had followed in his attempt to escape.
    The gun was a .38 calibre revolver, a restricted firearm. It was loaded.

[9]

Police searched the appellants Mercedes. There,
    they found varying amounts of five different drugs: cocaine and crack cocaine;
    MDEA; a fentanyl and heroin mix; and Xanax tablets, together with torn plastic
    bags typically used for drug sales at street level. The value of the drugs
    found was between $2,840 and $5,440 depending on how they were sold.

The Circumstances of the Appellant

[10]

The appellant was 21 years old when he
    committed the offences and 23 at the time of sentencing. He had a secondary
    school education and had worked in construction. The offences of which he was
    convicted included five firearms offences, four drug offences (possession for
    the purpose of trafficking), and single convictions for flight from police and
    possession of the proceeds of crime.

[11]

The appellant is a recidivist with several
    convictions as a youth and an adult. He committed his first offence as the
    youth of 13. Among his prior convictions are several property offences, five
    convictions for failure to comply with release forms or sentencing dispositions
    and convictions for carrying a concealed weapon and flight from police. The
    lengthiest custodial sentence he had served was 10.5 months.

[12]

When he committed the offences with which we are
    concerned, the appellant was bound by a weapons prohibition and two probation
    orders. He was also serving an intermittent sentence imposed on convictions of
    failure to comply and flight from police.

The Positions of the Parties at Trial

[13]

At trial, the Crown sought a penitentiary
    sentence of 7-8 years, less credit for pretrial custody at the rate of 1.5:1,
    but without any enhancement for the conditions of that custody, in particular, lockdowns.

[14]

Trial counsel for the appellant invited the
    trial judge to impose a sentence of 4-4.5 years, less credit for pretrial
    custody, enhanced beyond 1.5:1 because of the conditions of that custody.

The Reasons of the Trial Judge

[15]

The trial judge considered the appellant was a
    commercial drug trafficker who sold drugs from his vehicle  a mobile pharmacy
     and had a firearm to carry on that business. She considered the inclusion of
    the deadly fentanyl among his range of products as an aggravating factor.

[16]

In the trial judge's view, the appellant's
    youth, usually a mitigating factor, was counteracted by his lengthy youth
    record, starting at age 13, and the number and nature of his adult convictions.
    She considered the starting point for the drug offences as 3.5 years and the
    firearms offences as a serious aggravating factor.

The Grounds of Appeal

[17]

The appellant submits that the trial judge
    erred:

i.

in holding that the appellant's youth is not a
    mitigating factor in determining a fit sentence;

ii.

in failing to account for and apply the totality
    principle; and

iii.

in blending principles concerning credit for the
    fact and nature of pre-sentence custody that should have been kept discrete.

[18]

The appellant also seeks leave to introduce
    fresh evidence about current custodial conditions if we find an error in the
    sentencing judge's decision that had an impact on the sentence imposed, thus
    engaging our authority to sentence afresh.

Discussion

[19]

In our view, this appeal fails. Whether the
    grounds advanced are considered individually or cumulatively, we are not
    persuaded that the sentence imposed is demonstrably unfit or reflects an error
    in principle that had an impact on the sentence.

[20]

Taking first the alleged error in failing to
    consider the appellant's youth as a mitigating factor on sentence.

[21]

The appellants relative youth was the only
    mitigating factor put forward on his behalf on sentencing. The trial judge adverted
    to the submission but gave it less weight than counsel argued was its due. We
    see no error in the trial judge's analysis.

[22]

Yet again, this is a case involving that toxic
    combination of drugs and a handgun. Cocaine and crack cocaine. And fentanyl. A
    loaded .38 calibre handgun. In a motor vehicle, aptly characterized as a mobile
    pharmacy. Each a pernicious and persisting threat to the safety, welfare and
    indeed the lives of members of our community:
R. v. Wong
, 2012 ONCA 767,
    at para. 11.

[23]

These offences command exemplary sentences. The
    predominant sentencing objectives are denunciation and deterrence. Substantial
    jail terms are required even for youthful first offenders:
R. v. Mansingh
,
    2017 ONCA 68, at para. 24.

[24]

We do not gainsay the importance of the
    sentencing objective of rehabilitation in respect of youthful offenders. But
    its influence on the ultimate determination of a fit sentence is a variable,
    not a constant. In the absence of any realistic rehabilitative prospects, its
    impact on the nature and length of a sentence may be attenuated.

[25]

In this case, the appellants convictions, both
    as a young person and as an adult, militate against any realistic prospect of
    rehabilitation. He has proceeded with depressing regularity from one series of
    convictions to another. He appears to have little or no regard for court orders
    and has not benefited from non-custodial supervision. His current offences are
    of escalating seriousness, including firearms, drugs and flight from police.
    They were committed when he was bound by probation orders, a firearms
    prohibition and serving an intermittent sentence for cognate offences.

[26]

In our view, the trial judge did not err in
    assigning diminished weight to rehabilitation as a sentencing objective in this
    case.

[27]

Nor are we persuaded that the trial judge erred
    by failing to consider the principle of totality in determining the sentence
    she imposed.

[28]

The fundamental principle of sentencing is
    proportionality. Every sentence imposed must be proportionate to the gravity of
    the offence and the degree of responsibility of the offender:
Criminal Code
,
    s. 718.1. Totality is an expression of that fundamental principle. A global or
    cumulative sentence must adhere to the fundamental principle of proportionality
    and not exceed the overall culpability of the offender:
R. v. J.S
.,
    2018 ONCA 675, at paras. 64-5.

[29]

We do not consider the sentences imposed to be
    demonstrably unfit. These were very serious offences, each deserving of
    significant penitentiary terms. The imposition of consecutive sentences for
    breach of the weapons prohibition and possession of cocaine and crack cocaine
    for the purpose of trafficking represented punishment for different delicts and
    were properly made consecutive to the sentences for the various firearms offences.

[30]

The appellants final complaint is that the
    trial judge failed to keep conceptually discrete the statutory credit for
    presentence custody, on the one hand, and the enhanced credit awarded for the
    conditions of confinement  lockdown days  on the other.

[31]

The appellant received credit of 1.5:1 for each
    of 643 days of presentence custody. The trial judge added another .36 years
    credit for 113 days of lockdown.

[32]

Enhanced credit for lockdown days is neither an
    entitlement nor routinely granted upon the filing of institutional records. In
    the absence of evidence of any adverse effect of the lockdown conditions on the
    appellant, enhanced credit is not warranted:
R. v. Duncan
, 2016 ONCA
    754, at paras. 6-7.

Disposition

[33]

For these reasons, leave to appeal sentence is
    granted, but the appeal from sentence is dismissed. Since we have found no
    basis upon which to interfere, we do not reach the motion for leave to
    introduce fresh evidence.

Doherty J.A.

David Watt J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Onwubolu, 2020 ONCA 342

DATE: 20200602

DOCKET: M50546

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chinedu Onwubolu

Applicant (Appellant)

David Shulman, for the appellant

Craig Harper, for the respondent

Heard: In writing

REASONS FOR DECISION

[1]

The applicant seeks leave to appeal from the refusal of the Summary
    Conviction Appeal Court (SCAC) to extend the time to permit him to appeal a
    sentence imposed in 2014.

[2]

In August 2014, the appellant pled guilty to, and was convicted of,
    various offences arising out of four distinct incidents that occurred between
    February and September 2013. In October 2013, the trial judge accepted a joint
    submission and sentenced the appellant to a one-year conditional sentence. The
    appellant breached the terms of that sentence within a few months and was ordered
    incarcerated to serve the remaining eight months of that sentence.

[3]

Immigration proceedings, in which the authorities sought the removal of
    the appellant, commenced in December 2015. They were premised on the
    convictions and sentences entered earlier. The appellant has been challenging
    those proceedings and attempting to avoid removal since 2015.

[4]

In April 2019, about 4½ years after he had been sentenced, the appellant
    commenced an application in the SCAC, seeking an extension of time to appeal
    the sentence he had received at trial. The extension was refused in May 2019
    (see
R. v. Onwubolu
, 2019 ONSC 3060.

[5]

The applicant raised several issues on the application for the extension
    of time in the SCAC. The SCAC judge dealt with those issues in his reasons.
    Unfortunately, no one raised the question of the legality of the sentence. Nor
    had that issue been raised at trial. Indeed, it is raised for the first time on
    this application.

[6]

The failure to raise the question of the legality of the sentence sooner
    in these proceedings is perhaps some indication the illegality is more a matter
    of form than substance. Whatever the case, there appears to be a strong
    argument the sentence is illegal. An illegal sentence, if challenged, cannot
    stand.

[7]

We are confident, had the legality of the sentence been raised, the SCAC
    would have granted leave on that question. Consequently, we would grant leave
    on this application, set aside the refusal to grant the extension of time, and
    remit the matter to the SCAC with the following direction:

·

the SCAC will decide whether time should be extended to permit
    the applicant to appeal the sentence on the ground that the sentence imposed
    was illegal; and

·

if leave is granted on the question of the legality of the
    sentence, and if the SCAC concludes the sentence is illegal, it will be for
    that court to determine the appropriate sentence, having regard to the trial
    record, and any additional information it sees fit to receive on the appeal.

[8]

We remit the matter, as in our view it is the function of the
    SCAC to review the fitness of sentences imposed in summary conviction matters. This
    court has a more limited role. This court considers, if leave is granted,
    questions of law arising out of the SCACs exercise of its appellate role in
    sentencing in summary conviction matters.

[9]

Order to go in accordance with this
    endorsement.

Doherty J.A.

David Watt J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pinard, 2020 ONCA 346

DATE: 20200603

DOCKET: C65720

Fairburn, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emmanuel Pinard

Appellant

Emmanuel Pinard, in person

Jessica Smith Joy, for the respondent

Heard: May 29, 2020 by
    Teleconference

On appeal from the convictions entered
    on April 5, 2018 by Justice Charles D. Anderson of the Ontario Court of
    Justice.

REASONS FOR DECISION

[1]

This is an appeal from two counts of break and enter, one of assault,
    one of fail to comply, and one of uttering a threat to an animal. The appellant
    was sentenced to a total of 90 days intermittent on all counts and two years
    probation.

[2]

The appellant says that the trial judge erred by relying on the evidence
    of a witness, notwithstanding that that witness failed to notice the tattoos
    and stab wounds on the appellants body. He also says that the trial judge
    erred by relying upon another witness evidence, even though that witness was
    caught lying twice. Finally, although he did not raise the issue in oral
    argument, the appellants notice of appeal takes issue with the admission of a
    prior sworn, recorded statement of the complainant (the KGB statement).

[3]

We do not agree that the trial judge made any such errors. The trial
    judge explained his credibility findings and those findings are entitled to
    deference from this court. Further, we note that the evidence of the first
    witness, that the appellant challenges, was not relied upon for identification
    purposes.

[4]

On the KGB statement issue, it was received on consent. We see no basis
    to interfere on appeal.

[5]

The appeal is dismissed, save for setting aside the victim fine
    surcharges.

Fairburn
    J.A.

I.V.B.
    Nordheimer J.A.

Harvison
    Young J.A.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13,
    s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    R.L.S., 2020 ONCA 338

DATE: 20200601

DOCKET:
C67461

MacPherson, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.L.S.

Appellant

R.L.S., acting in person

Erin Dann, appearing
as duty counsel

Hannah Freeman
, for the respondent

Heard: May 20,
    2020, by teleconference

On appeal from the
    sentence imposed on August 12, 2019 by Justice Richard T. Knott of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

Mr. S. appeals from a 9-month sentence imposed on August 12, 2019 for
    counseling a child to touch him for a sexual purpose, and for touching a child
    for a sexual purpose. He asks that this court reduce the sentence to less than six
    months so that the opportunity to appeal from a deportation order will not be
    lost.

[2]

The appellants moral blameworthiness was elevated. The victim was his
    daughter. When she was between the ages of four and six years, he had her watch
    pornography with him that depicted daughters performing sexual acts on their
    fathers. During this time, he had her touch his erect penis with her hand. On
    another occasion he would sit with her and play an internet game depicting
    genitals. On yet another occasion he sat her on his lap, when his clothes were
    off and his penis was exposed.

[3]

The accused pleaded guilty and was very remorseful. When the allegations
    came to light, he attempted suicide.

[4]

He was a 51-year-old first offender who had otherwise led a pro-social
    life. He was a permanent resident originally from Tennessee. He himself had
    been sexually abused by other teenagers during his adolescence.

[5]

At trial, the Crown sought a 12-month sentence; the
defence
suggested that six months less a day would
    be appropriate.

[6]

The sentencing judge noted that the victim impact statement demonstrated
    that the effect on the victim was obvious and telling and that she would be
    dealing with the aftereffects of the appellants actions long after he was
    released from custody.

[7]

The sentencing judge noted the seriousness of the offence, the obvious
    breach of trust, the young age of the victim, the element of grooming and the
    repetition of the sexual contact.

[8]

The sentencing judge was aware of the immigration consequences of his
    decision, but he did not think that deportation to the United States amounted
    to the severe hardship that might result from deportation to other countries. He
    concluded that the immigration issue was of lesser consideration than in
    other cases.

Analysis

[9]

The appellants moral culpability was high. If anything, the sentence
    was lenient in light of the principles explained in
R. v. Friesen
,
2020 SCC 9.

[10]

While
    a sentencing judge may exercise his or her discretion to take collateral
    immigration consequences into account, the sentence ultimately imposed must be
    proportionate to the gravity of the offences and the degree of responsibility
    of the offender. Inappropriate and artificial sentences cannot be imposed in
    order to avoid collateral immigration consequences: see
R. v. Pham
,
2013 SCC 15, [2013] 1 S.C.R. 739, at paras.
    14, 15.

[11]

The
    sentencing judge was aware that the appellant had lived in Canada for
    approximately 20 years, had supportive friends here and was gainfully employed.
    Despite the serious consequences of a deportation order he concluded that a nine-month
    sentence was required.

[12]

Here
    the sentence of imprisonment is not demonstrably unfit. Nor did the sentencing
    judge make an error in principle in arriving at the nine-month sentence. There
    is nothing which displaces the deference owed to the decision of the sentencing
    judge. In these circumstances there is no basis for this court to intervene and
    the appeal from the nine-month sentence of imprisonment is dismissed.

[13]

The
    appellant also asks this court to set aside the order prohibiting him from
    attending a public park or public swimming area where persons under the age of
    sixteen years are present or can reasonably be expected to be present, or a
    daycare
centre
, school ground, playground or
    community
centre
. In particular, he submits
    that the definition of park is so broad that he is left unable to safely
    assess where he can and cannot go.

[14]

The
    appellants past conduct does not suggest that he constitutes a risk to persons
    present in parks and this condition can be tailored to target the remaining
    risks more narrowly. Paragraph (a) of the prohibition order will be varied to
    read as follows:

(a)   Attending at a
    public swimming area or community
centre
where
    persons under the age of sixteen years are present or can reasonably be
    expected to be present, or a daycare
centre
,
    school ground, playground.

The parties agree that paragraphs (a.1) and (b) will
    remain as in the prohibition order.

[15]

The
    parties also agree that paragraphs (c) and (d) should be varied to more
    narrowly define the prohibited conduct. Those paragraphs of the prohibition order
    are deleted and the following prohibitions substituted:

(c)   Using a computer
    system within the meaning of subsection 342.1(2) for the purpose of
    communicating with a person under the age of 14 years.

(d)   1. Not to access the
    internet or use any device capable of accessing the internet or any similar
    communication device while in the presence of a person under the age of
    sixteen;

2. Under any circumstances, not to
    use any telecommunication device to access the Internet or other digital
    network in order to:

·

Access or possess child pornography or
    pornography depicting acts that are illegal under the Criminal Code of Canada;

·

Possess or access any images of children who
    are, depicted to be or appear to be under the age of 18 years who are naked or
    who are portrayed in a sexual manner; or

·

Access or participate in chat rooms, bulletin
    boards or other social media that discuss or promote child exploitation, child
    pornography, sexualized images of children or other child exploitation
    material.

3. Not to use or
    permit to be installed on any device in your possession any program or service
    designed to allow anonymous use of the internet.

[16]

Accordingly,
    the appeal is allowed only to the extent of varying the prohibition order
    imposed by the sentencing judge.

J.C.
    MacPherson J.A.

G.
    Pardu J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ray, 2020 ONCA 351

DATE: 20200604

DOCKET: C65747

Rouleau, Zarnett and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marina Ray

Appellant

Marina Ray, acting in person

Michael Fawcett, for the respondent

Heard: In writing

On appeal from the conviction entered by
    Justice A.M. Mullins of the Superior Court of Justice on January 30, 2017, with
    reasons reported at 2017 ONSC 696, and from the dismissal of an application for
    a stay of conviction on April 16, 2018, with reasons reported at 2018 ONSC
    2426, and from the sentence imposed on July 12, 2018.

REASONS FOR DECISION

[1]

The appellant was convicted, on January 30,
    2017, after trial by judge alone, of counselling the commission of an
    indictable offence which was not committed, contrary to s. 464(a) of the
Criminal

Code
. The intended offence was murder. The intended victim was the
    appellants former spouse, with whom she was embroiled in family law
    litigation. No murder occurred; the hitman the appellant counselled to commit
    the murder was an undercover police officer.

[2]

The appellant applied to stay her conviction on
    the basis that she was entrapped by police conduct. The trial judge dismissed
    that application on April 16, 2018.

[3]

On July 12, 2018, the trial judge sentenced the
    appellant to 5 years in prison less a combined credit of 8 months for both
    pre-trial custody and the period during which she was subject to strict bail
    conditions.

[4]

The appellant appeals her conviction, the
    dismissal of her stay application, and her sentence.

[5]

In light of the Covid-19 emergency, the parties
    agreed that the appeal be heard in writing.

[6]

For the reasons that follow, we dismiss the
    appeal.

BACKGROUND AND CIRCUMSTANCES OF THE OFFENCE

[7]

The appellant was 60 years of age at the time of
    trial. She was born in the former Soviet Union. She came to Canada in 1990 with
    her then-husband and a daughter from a prior marriage. She applied for refugee
    status, and ultimately became a Canadian citizen in 1996. The appellant
    remarried in 2001, but the individual she married became ill and died in
    October 2003. After his death, the appellant was involved in civil litigation
    with his children.

[8]

The appellant met Michael Ray in November 2008. They
    married in December 2009. The relationship soured; she eventually locked him
    out of her home after learning of his criminal history and other improper
    dealings.

[9]

In October 2012, the appellant and Mr. Ray
    divorced. In November 2013, she listed her home for sale. Shortly after that,
    Mr. Ray brought proceedings against the appellant seeking support and an
    equalization of family property.

[10]

On November 26, 2013, the appellant went to see
    Victor Sokolovski, the owner of a martial arts studio who was acquainted with
    the appellant and Mr. Ray. On Mr. Sokolovskis evidence, the appellant told him
    of her desire to kill Mr. Ray and asked that he (Mr. Sokolovski) help her find
    someone to do so. She told Mr. Sokolovski that she did not want to share the
    equity in her house with Mr. Ray. She also asked if he knew someone who would
    lend her $500,000 under a back-dated note.

[11]

On the appellants evidence she went to see Mr.
    Sokolovski to borrow money and enquire about a back-dated note. She claimed
    that any reference to wanting Mr. Ray killed was made as a joke.

[12]

A few days after he met with the appellant, Mr.
    Sokolovski went to the police. A few days after that he was asked to cooperate
    with them. At the request of the police he contacted the appellant, asked if
    she had changed her mind, and said that he had found someone who could help her.
    He arranged for the three of them to meet on December 7, 2013.

[13]

On December 7, Mr. Sokolovski, the appellant,
    and an undercover police officer posing as a hitman, met. Mr. Sokolovski left.
    A discussion ensued between the appellant and the officer inside a vehicle. It
    was recorded by video. A subsequent meeting took place on December 9 between
    the appellant and the officer, also in a vehicle and also recorded by video.

[14]

The trial judge summarized the two meetings
    based on the video recordings as follows:

The video recordings of Marina Ray and a
    police officer posing as a hit man reveal that Mrs. Ray agreed with the officer
    that she wanted her husband to be liquidated. She suggested specific occasions
    and places where he might be located. She had a photograph of her former
    husband with her on the first meeting, which she gave to the officer. She
    provided his address and phone number and she described her ex-husbands height
    and hair. They discussed how much she would pay. They agreed that she would give
    him $2,000 up front. On December 7
th
she gave him $300 and on the 9
th
,
    $1700. She expected Mr. Ray to be shot, then suggested he be drugged. She
    insisted he be left for dead. She gave the undercover officer a history of her
    troubled relationship with Mr. Ray, described his criminal conduct and her
    legal dispute regarding her home. She expressed a view that her ex-husband
    deserved the outcome she was discussing with the officer. She provided
    documents and drew maps.

At the second of their two meetings, Mrs. Ray
    arrived with a written agenda. She instructed the officer that he was to tell
    Mr. Ray that his death was vengeance for all the women he used, abused and
    stole from. She questioned the officer as to his planning. She requested
    assurance that Mr. Rays body would be found, and his death confirmed. They
    discussed the arrangements for payment of the balance of the funds. They made
    security arrangements so that their communications would not be traceable. As
    he had during the first meeting, the officer warned Mrs. Ray, repeatedly, that
    she would not have an opportunity to change her mind.

THE DEFENCE AT TRIAL

[15]

The appellants defence at trial was that she
    did not intend to kill her husband or hire a hitman to do so. She was fearful
    and distrustful of authorities. She had had a disastrous experience with the
    civil justice system when litigating with her late husbands children, and
    unsatisfactory experiences with the police when she tried to involve them in
    helping her with problems created by Mr. Ray. When Mr. Sokolovski called her to
    say he had made arrangements for her to meet with someone who could kill Mr.
    Ray, she was terrified that Mr. Sokolovski was able to make such an arrangement
    so quickly. She was also fearful of the hitman she thought she was meeting with,
    and of what would happen to her and her family if she appeared not to want to
    follow through. Calling the authorities was not an option for her. She was in a
    poor mental state, afflicted with insomnia, and overmedicating. So, she simply
    played along. She explained her agreement to meet with the hitman, and her conversations
    with him, as nonsensical behaviour that was a product of her poor mental state
    and these circumstances.

THE CONVICTION

[16]

The trial judge found that the appellant had
    gone to see Mr. Sokolovski to try to create a debt to resist Mr. Rays
    financial claims and, better still, to have her former husband killed. She
    found, based on the appellants words and conduct when she met the undercover
    officer on two occasions, that she counselled him to kill Mr. Ray.

[17]

The trial judge rejected the appellants
    evidence that she played along out of fear, or that she had no intention that
    Mr. Ray be killed, or that she was caught up in a nightmare of [Mr.
    Sokolovskis] contrivance, whilst overwhelmed by insomnia, sleeping pills and
    stress.

[18]

The trial judge found that the appellants
    evidence did not give rise to a reasonable doubt, and the balance of the
    evidence established the
actus

reus
of the offence beyond a
    reasonable doubt.

[19]

Although the trial judge rejected the
    appellants evidence, she observed that even if the appellants evidence were
    believed, the required
mens rea
for the offence was still established
    because the appellant was aware of the unjustified risk that the murder she
    counselled was likely to be committed as a result of her conduct. The appellants
    evidence did not give rise to a reasonable doubt, and the balance of the
    evidence established her
mens rea

beyond a reasonable doubt.

THE STAY APPLICATION

[20]

Subsequent to her conviction, the appellant
    sought a stay of the conviction on the grounds that she had been entrapped by
    police conduct. She relied on the evidence at trial, a further affidavit by
    her, as well as the evidence of two police officers who, at her request, testified
    at the hearing of the stay application.

[21]

The theory of the stay application was that the
    police had not adequately recognized and accounted for the appellants vulnerabilities
    before forming the plan that led to her being charged. Instead they exploited her
    vulnerabilities, inducing her to commit the offence. The police conduct was
    therefore an abuse of process.

[22]

The trial judge rejected the suggestion that the
    appellant was induced to commit a crime. On the contrary, the appellant had
    initiated all discussions about having her husband killed:

[S]he asked, respectively, two men to kill her
    husband; brought a photograph of her husband with her to ensure his
    identification; told the undercover police officer where her husband lived,
    what car he drove and where he might visit his parents; prepared a list of
    concerns to review with the officer; entertained different methods to cause his
    death; asked for a specific speech to be made as he was killed; concerned
    herself with avoiding detection; and gave repeated explanations of her motives;
    all in circumstances in which she was repeatedly asked if she was certain she
    wanted to have him killed, and declined offers to inflict lesser harm.

[23]

The trial judge found that, even accepting that
    the appellant was in challenging circumstances with limited means, that she viewed
    the police as having been hostile to her, and that she was disappointed in the
    justice system, there was no evidence that the police instigated any criminal
    activity. Moreover, even though there was some evidence of the appellant having
    poor mental health, based on all the evidence, the trial judge concluded that she
    did not present any frank manifestation of mental illness. Her words and
    conduct are purposeful and organized relative to her repeated desire to have
    her husband killed.

[24]

The trial judge concluded:

I find that there is nothing in the evidence,
    particularly the video recordings, to suggest that the police exploited Ms. Ray
    in any way. She was resolute in expressing her desire to have her husband
    killed. Her mental and emotional functions seem remarkably composed, especially
    given the subject matter. In my view, when all of the evidence is considered,
    it is wholly inconsistent with her being in a state of vulnerability that was
    open to exploitation, or was exploited, by police.

THE SENTENCE

[25]

The appellant was sentenced in July 2018. By
    that time, the appellant had spent 143 days in pre-trial custody and roughly 1,528
    days on bail under strict conditions. The Crown sought a sentence of six to eight
    years. The appellant asked for a sentence of time served, based in part on the
    credit she argued she should receive for pre-trial custody and for her time on
    bail, time which she characterized as house arrest. The trial judge imposed a
    sentence of five years incarceration, less a combined credit of eight months
    for time in pre-trial custody and on bail.

THE CONVICTION APPEAL

[26]

In her appeal against conviction, the
    appellants primary argument is that her conduct should attract the defence of
    duress. She submits that what she engaged in was morally involuntary conduct
    that should not be the subject of criminal sanction or punishment. It was the
    product of her vulnerable mental state, and her fear of those she was involved
    with and what they might do to her and her family.

[27]

In support of that argument, the appellant
    points to various areas in the evidence which she says could have allowed the
    trial judge to view certain of the evidence differently, and thus doubt elements
    of Mr. Sokolovskis evidence, or draw different conclusions about her
    vulnerability and fear of Mr. Sokolovski and the hitman. She also says at times
    that the trial judges reasons did not adequately explain or account for
    certain matters, such as why the appellant would disclose her troubled personal
    history to a hitman, or the evidence about her distressed mental state prior
    to the offence.  The appellant also points to the portion of the trial judges
    reasons in which she held that the
mens

rea
of the offence was
    established even if the appellants evidence were believed. She submits that if
    her evidence were believed, it was clear that she acted out of fear for her
    life and that of her grandchildren.

[28]

We do not accept these arguments.

[29]

Nothing that the appellant has pointed to
    supports a conclusion that the trial judge made a palpable and overriding error
    in her factual findings or the inferences she drew. Such an error is necessary
    before this court can treat the matter on a factual basis different than that
    found by the trial judge:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R.
    235, at paras. 21-23.

[30]

Nor are the reasons of the trial judge
    inadequate. They explain why she decided as she did, and permit meaningful
    appellate review:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at
    paras. 10 and 15.

[31]

It does not appear that duress was directly
    raised as a defence at trial. In any event, on the trial judges findings, it
    is unavailable to the appellant. The trial judge found that the appellant
    intended to have Mr. Ray killed, and that she initiated all discussions that
    took place about it. The trial judge expressly rejected the suggestions that
    the words and conduct of the appellant, which clearly amounted to counselling
    murder, were the result of the appellant playing along out of fear, or that she
    was caught up in something of Mr. Sokolovskis design.

[32]

These pivotal findings are what matters,
    notwithstanding that the trial judge expressed an additional reason for her
    conclusion on
mens

rea
, noting that it existed even if the
    appellant were believed that she did not intend that Mr. Ray be killed because she
    was clearly aware of the unjustified risk that the murder she counselled was
    likely to occur due to her conduct. However, it must be remembered that the
    appellants evidence was not believed; it was expressly rejected.

[33]

Duress is available when an offence is committed
    by a person while under
compulsion
of a threat made for the purpose of bringing about the commission
    of the offence. An act so compelled lacks moral voluntariness. Two elements of
    both the common law and statutory defences of duress are that the accused was
    the subject of a threat of death or serious bodily harm, and that she
    reasonably believed the threat would be carried out
: R. v. Ryan
, 2013
    SCC 3, [2013] 1 S.C.R. 14, at paras. 2, 17, 43 and 55.

[34]

The trial judge expressly rejected the
    suggestion that the appellant had acted out of fear. That rejection, when
    coupled with the findings that the appellant intended that Mr. Ray be killed,
    that she initiated the discussions about Mr. Ray being killed, and that she
    counselled, in a detailed manner on two occasions, how the killing should
    occur, preclude the application of the defence of duress in its statutory or
    common law form.

[35]

Accordingly, the appeal from conviction must be
    dismissed.

THE APPEAL OF THE REFUSAL TO GRANT A STAY

[36]

A proceeding or entry of a conviction may be
    stayed where the accused shows police conduct amounting to entrapment. A stay
    should be granted only in the clearest of cases:
R. v. Mack
, [1988] 2
    S.C.R. 903, at p. 977. Entrapment occurs when (a) police provide a person with
    an opportunity to commit an offence without having a reasonable suspicion
    that the person is already engaged in criminal activity or pursuant to a
bona
    fide

inquiry; or (b) police go beyond providing an opportunity and
    actually induce the commission of an offence
: Mack
, at pp. 964-965
;
    R v. Ahmad
, 2020 SCC 11, at paras. 15 and 23.

[37]

The appellant argues, as she did on the
    application before the trial judge, that the second branch of entrapment
    applies, namely that the police exploited her vulnerability, thus inducing her
    to commit an offence. Before this court, she appears to add an argument not
    made below, that the first branch of entrapment also applies, that is, that the
    police provided an opportunity to commit an offence without having a reasonable
    suspicion. She maintains that the trial judge should have entered a stay.

[38]

We see no error in the trial judges careful
    consideration and rejection of the appellants application for a stay on the basis
    of entrapment.

[39]

The first branch of entrapment cannot be relied
    upon by the appellant. In addition to it not having been put forward on the
    stay application, on which the appellant was represented by counsel, the findings
    that the trial judge did make are inconsistent with an absence of reasonable suspicion.

[40]

In the entrapment context, the reasonable
    suspicion standard requires something more than a mere suspicion and
    something less than a belief based upon reasonable and probable grounds:
R.
    v. Chehil
, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 26, citing
R. v.
    Kang
‑
Brown
, 2008 SCC 18, [2008] 1 S.C.R.
    456, at para. 75. It focuses on what the police knew at the time the
    opportunity was provided:
Chehil
, at paras. 26-29. In addition to
    information originally provided, investigative steps taken by the police as a
    consequence of that information can be relevant:
R. v. Clarke
, 2018
    ONCJ 263, at paras. 40 and 56-57;
Ahmad
, at paras. 51-52. Interactions
    with the accused before the opportunity to commit the offence was offered may
    also be considered, as the police may form a reasonable suspicion in the course
    of a conversation with the target, but prior to presenting the opportunity to
    commit a crime:
R. v. Townsend
, [1997] O.J. No. 6516 (C.J. Gen. Div.);
Ahmad
, at para. 54.

[41]

In this case, the police acted on a report from Mr.
    Sokolovski, after which they opened an investigation and made inquiries about
    Mr. Ray and the appellant in several databases. They also conducted telephone
    surveillance, reviewed police occurrence reports about domestic disputes
    between Mr. Ray and the appellant and conducted a threat assessment. It was
    only after [h]aving this information in hand that the police developed a plan
    to have the appellant introduced to an undercover police officer. When she met
    the undercover officer, it was the appellant, not the officer, who initiated
    the discussions about having Mr. Ray killed in response to being asked what she
    wanted. The police did not engage in random virtue testing:
Mack
, at
    pp. 941 and 956;
Ahmad
, at paras. 17 and 27-28.

[42]

With respect to the inducement branch of
    entrapment, the findings of fact of the trial judge are also fatal to the
    appellants success. The trial judge found that it was the appellant who
    initiated the discussions when she met with the undercover officer about having
    Mr. Ray killed; they were not instigated by the police. The trial judge expressly
    found that there was no inducement. After carefully reviewing the evidence, she
    concluded that there was no manifestation of vulnerability by the appellant
    that could be, or was, exploited by the police.

[43]

This ground of appeal fails.

THE SENTENCE APPEAL

[44]

The appellant argues that she received
    insufficient credit for her time on bail, which she characterizes as house
    arrest.

[45]

The trial judge gave a total credit of eight
    months against the five-year sentence she imposed. She did not precisely explain
    how the credit was calculated. In the context of describing the appellants
    submission on sentence, the trial judge noted that 143 days in pre-trial
    custody would be credited at 1.5. She also noted the appellants submission
    that she should be entitled to a credit for strict bail conditions. Without
    repeating that the appellants pre-trial custody would be credited at 1.5 or expressing
    any conclusion about what precise credit should be given for time on bail, the
    trial judge concluded that the appellant would be credited for the time [she
    has] served in pre-trial incarceration and the period of [her] bail of eight
    months.

[46]

The time spent by the appellant in pre-trial
    custody, 143 days, would equate to a 7-month credit (approximately) based on the
    1.5 times calculation the trial judge referred to in relation to the
    appellants submission, and which is contemplated by the
Criminal Code
.
    On the assumption that this credit is what the trial judge used for pre-trial
    custody, the eight-month total credit would have included a little less than one
    month for her time on bail.

[47]

We would not interfere with the sentence in this
    case. It cannot be suggested that the trial judge overlooked the issue of
    credit for pre-trial custody and time on bail. Her reasons for sentence recite,
    in some detail, the request of the appellant for these credits.

[48]

The credit given adequately accounts for the time
    spent in pre-trial custody. The decision whether to provide a credit for time
    on bail is discretionary:
R. v. Ijam
, 2007 ONCA 597, 87 O.R. (3d) 81,
    at para. 37. The record does not disclose terms of bail that were so strict as
    to necessarily entail the conclusion that an error in principle occurred in the
    amount of the credit given for time on bail. The terms of bail allowed the
    appellant to leave her residence in the presence of her surety and were varied to
    also permit her to leave her residence without her surety to walk her dogs on a
    twice daily basis. She was allowed to live with a friend with whom she
    developed a close personal relationship. There was no evidence of any special
    prejudice suffered by the appellant as a result of the terms of her bail:
R.
    v. Pomanti
, 2017 ONCA 48, at para. 34.

[49]

Overall, we cannot conclude that the sentence
    was unfit or that it was materially affected by an error in principle:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41-42.

CONCLUSION

[50]

For these reasons, we dismiss the conviction
    appeal and the appeal from the denial of a stay.  We grant leave to appeal sentence
    but dismiss the sentence appeal.

Paul Rouleau J.A.

B. Zarnett J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reeve, 2020 ONCA 381

DATE: 20200610

DOCKET: C67010

Fairburn, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Reeve

Appellant

Erin Dann and Angela Ruffo, for the
    appellant

Catherine Weiler, for the respondent

Heard: May 26, 2020 by
    Videoconference

On appeal from the sentence imposed on
    June 22, 2018 by Justice Antonio Skarica of the Superior Court of Justice,
    sitting without a jury.

Fairburn J.A.:

I.

OVERVIEW

[1]

The appellant ran a financial investment company
    and had a good reputation in the financial industry. He got into financial
    difficulty in 2007. Over the next two and a half years, he perpetrated a
    large-scale fraud on 41 unsuspecting clients. As found by the sentencing judge,
    he used the victims money for a number of purposes, including business and
    personal expenses, as well as payments to his ex-wife to fulfill a large
    outstanding support order. As is often the case in classic Ponzi schemes, the
    appellant also used some of the victims money to pay back other victims, ones
    who were becoming suspicious about what had happened to their money. By taking
    the money of some to pay others, the appellant successfully avoided coming to
    the attention of the police for a significant period of time.  At the end of
    the day, the victims were out over $10 million and even larger sums had been
    put at risk.

[2]

The appellant was convicted of fraud over $5,000
    and theft over $5,000. He was sentenced to the maximum term of 14 years
    imprisonment. Given that he had already spent 71 months in pre-sentence
    custody, counsel agreed that he should receive credit in the amount of 8.9
    years. He was provided with an additional 1.1 year of credit due to what the
    trial judge deemed harsh conditions during the 71 months he had spent in
    remand in accordance with the principle laid down in
R. v. Duncan
,
    2016 ONCA 754, at para. 6.

[3]

A restitution order pursuant to s. 738(1)(a) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, issued in the amount of
    $10,887,885. In addition, a fine in lieu of forfeiture was ordered in the same
    amount as the restitution order. The appellant was given ten years following
    the completion of his term of imprisonment to pay the fine. In default of
    payment of the fine, pursuant to s. 462.37(4)(a)(vii), the appellant was
    ordered to serve the maximum term of ten years imprisonment. The fine in lieu
    of forfeiture is to be reduced by any amount paid pursuant to the restitution
    order:
R. v. Waxman
, 2014 ONCA 256, at para. 31.

[4]

The appellant pursues both a conviction and
    sentence appeal. Given the time sensitivity attaching to the sentence appeal,
    the court agreed to hear it first.  On May 29, 2020, leave to appeal the
    sentence was granted, the appeal was granted, and the sentence was varied to
    ten years incarceration. No other aspect of the sentence was appealed.
    Accordingly, the sentence was affirmed in all other respects.

[5]

Written reasons were to follow. These are those
    reasons.

II. THE REASONS FOR SENTENCE

[6]

The sentencing judge spent a good portion of his
    reasons reviewing the devastating impact that the fraud had on the victims.
    About this there is no dispute. The sentencing judge described the victims as
    disabled, the elderly, the grieving spouse, the emotionally vulnerable, the
    close long-time friends, the loyal client, and complete strangers. Many of
    them lost their life savings to the appellant.

[7]

The sentencing judge concluded that there were
    no mitigating circumstances operative in this case. In contrast, he concluded
    that virtually every aggravating circumstance recognized by the
Criminal
    Code
and the case law was present, pointing to:

·

the amount of the fraud and large number of
    victims;

·

the potential to adversely affect investor
    confidence in the financial market;

·

the fact that the appellant took advantage of
    the high regard in which he was held in the investment community, breaching the
    trust of his clients and the industry licencing requirements;

·

the appellants lack of remorse and empathy for
    his victims (as further discussed below);

·

the serious victim impact;

·

the length of time over which the fraud had been
    perpetrated;

·

the appellants motivation being rooted in his
    inflated ego and extravagant lifestyle; and

·

the fact that the appellant exploited the fear
    and panic created by the 2008-2009 worldwide financial crisis  by convincing
    clients/victims, who trusted him, to cash in their losing portfolios and
    convert the monies into safer investments.

[8]

The sentencing judge considered prior
    authorities where sentences had been imposed in like situations, but ultimately
    concluded that they were of little assistance because of what he perceived to
    be the unique circumstances of this case and this offender. Ultimately, he
    concluded that the appropriate disposition was the maximum 14-year sentence.

III. USING A LACK OF REMORSE AS AN
    AGGRAVATING FACTOR

[9]

The appellant raises numerous grounds of appeal.
    It is only necessary to deal with one. It relates to the use of the lack of
    remorse as an aggravating factor on sentence.

[10]

The appellant apologized at the sentencing
    hearing for the fact that the victims had suffered at [his] hands. The
    sentencing judge rejected that apology as hollow. He found that the appellant
    had a complete lack of remorse. It was open to the trial judge to make that
    finding. The difficulty is with how that finding was put to use.

[11]

A genuine expression of remorse can constitute
    an important mitigating consideration at the time of sentencing. When an
    offender demonstrates, through actions and/or words, that he or she is
    genuinely remorseful for his or her conduct, it can show that the offender has
    some insight into his or her past actions and takes responsibility for them.
    Taking responsibility for past conduct is an important step toward
    rehabilitation and gives cause for hope that the offender may be set on a path
    of change. The greater the genuine insight into past offending behaviour, the
    greater the cause for hope.

[12]

While a genuine expression of remorse can serve
    to mitigate a sentence, the opposite is not true. An offender cannot be
    punished for a lack of remorse. The reason is clear. Punishing an accused for
    failing to express remorse comes perilously close to punishing him or her for
    exercising the right to make full answer and defence:
R. v. Valentini
(1999), 43 O.R. (3d) 178 (C.A.), at para. 83. Even after a guilty verdict, an
    accused is entitled to maintain his or her innocence and cannot be punished for
    maintaining that stance.

[13]

Crown counsel emphasizes that, while remorse
    cannot typically be used as an aggravating factor on sentence, there are
    limited exceptions to the rule. This case is said to fall within those
    exceptions. Specifically, Crown counsel points to the fact that a lack of
    remorse may shine a light on the likelihood of future dangerousness, as well
    as inform the applicability of sentencing principles involving specific
    deterrence and rehabilitation:
Valentini
, at para. 82;
R. v.
    P.(B.)
(2004), 190 O.A.C. 354,  at para. 2. See also:
R. v. F.(J.)
,
    2011 ONCA 220, 105 O.R. (3d) 161, affd on other grounds in 2013 SCC 12, [2013]
    1 S.C.R. 565, at para. 85;
R. v. Shah
, 2017 ONCA 872, at para. 8.
    Crown counsel maintains that the trial judges references to the absence of
    remorse should be understood as references to the appellants attitude toward
    the crime, an attitude that underscored his likelihood of future
    dangerousness.

[14]

As supported by the authorities just cited, the
    absence of remorse will sometimes be relevant in the sentencing process. That
    does not mean, though, that someone can be punished for failing to show
    remorse. While a lack of remorse may, in rare circumstances, inform potential
    future dangerousness, which can in turn inform the application of some
    sentencing principles, such as the suitability of emphasizing rehabilitation,
    it must never be used as an aggravating factor that is deserving of punishment.

[15]

Despite Crown counsels capable argument on this
    point, I cannot read the sentencing judge as having used the absence of remorse
    in the limited way that she suggests. In my view, the reasons for sentence make
    clear that the appellant was actually punished for his lack of remorse in the
    face of what the trial judge perceived to be a strong prosecution case.

[16]

The second paragraph of the sentencing judges
    reasons following the heading Aggravating Circumstances reads as follows:

Mr. Reeve has
absolutely no remorse
or
    empathy for the victims.  During his trial evidence, Mr. Reeve
insisted he
    had done nothing wrong despite the absolutely overwhelming evidence of
    fraudulent intent and fraudulent conduct
deliberately perpetrated by Mr.
    Reeve over the indictment period from 2007-2009. [Emphasis added.]

The evidence at this trial and subsequent
    sentencing confirm the following comments found at page 9 of the presentence
    report:

The subject does not take responsibility
    for his offences, and
shows no remorse
for any of his offences. Of
    concern the subject appears to have little to no empathy for the victims
    losses.
He denies any intent to defraud investors in any of his companies
.
    [Emphasis added.]

[17]

Later in the reasons, the absence of remorse was
    directly linked to the decision to impose the maximum custodial term:

When the fraud was done and the money was
    gone, many, if not most, of the victims, were left with lives of complete devastation,
    absolute destitution and utter despair, which in many cases continues to this
    day.
Mr. Reeve, like a true predator, walked away, until his arrest, with
    absolutely no empathy or remorse for the suffering and scarring left behind.

If that scenario does not cry out for a
    maximum sentence, what does
? [Emphasis added.]

[18]

These passages stand in direct opposition to the
    rule that an accused cannot be punished for an absence of remorse.

[19]

Not only was the appellants lack of remorse
    specifically identified as an aggravating factor, but its strength as an
    aggravating factor was directly linked to his having chosen to make full answer
    and defence in the face of what the sentencing judge saw as absolutely
    overwhelming evidence of his guilt.

[20]

Punishing a person for maintaining their
    innocence, based on an after-the-fact determination that the prosecution had a
    strong case, could do serious harm to the criminal justice system. Accused
    persons are entitled to put the Crown to its proof and cannot be punished or
    seen to be punished after-the-fact, simply because the Crown met that burden.
    Accused must be able to assert the right to full answer and defence,
    unencumbered by fear of future implications. To proceed otherwise would
    seriously undermine that fundamental right.

[21]

The fact that the accused was punished for his
    lack of remorse in the face of a strong Crown case, and the sheer strength of
    that factor in the sentencing decision, is evidenced in the rhetorical question
    put just prior to the maximum custodial sentence being announced. The trial
    judge asked, If that scenario does not cry out for a maximum sentence, what
    does? The scenario he was referring to had just been stated in the previous
    paragraph: walking away from the devastated victims with absolutely no empathy
    or remorse for the suffering and scarring left behind.

[22]

In my view, the reasons lead to the inescapable
    conclusion that, among other things, the appellant was punished for his failure
    to show remorse, including by exercising his right to a trial.

IV. DID THE ERROR IN PRINCIPLE HAVE AN IMPACT
    ON THE SENTENCE?

[23]

It is an error in principle to use the absence
    of remorse as an aggravating factor for which the accused should be punished.
    Where an error in principle is found to have had an impact on the sentence, the
    appellate court must perform its own sentencing analysis to determine a fit
    sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    43;
R. v. Friesen
, 2020 SCC 9, at para. 27.

[24]

The question here is whether the trial judges
    error in using the absence of remorse as an aggravating factor had an impact on
    the sentence imposed. Crown counsel argues that it did not, emphasizing that
    virtually every statutory and common law aggravating factor was present in this
    case, justifying the maximum sentence imposed. Therefore, even if remorse was
    wrongfully described as an aggravating factor, the 14-year sentence was still
    called for and this court should not interfere. I disagree.

[25]

On the sentencing judges own words, it was the
    victims suffering and the appellants lack of remorse for that suffering that
    called for the maximum term of imprisonment. Accordingly, I conclude that the
    error in principle is inextricably linked to the imposition of the maximum
    custodial term imposed in this case.

[26]

The question now becomes: what factors should
    the court take into account in sentencing the appellant afresh?

V. SENTENCING THE APPELLANT AFRESH

[27]

In the event that this court sentences the
    appellant afresh, consistent with the Crowns position at trial, Crown counsel
    maintains that the maximum term of imprisonment should be imposed. Consistent
    with his position at trial, the appellant maintains that a custodial term of
    between eight to ten years imprisonment is appropriate.

(a)

Proportionality and Parity Work in Tandem

[28]

Proportionality and parity are key sentencing
    principles.

[29]

Sentences must be proportionate to the gravity
    of the offence and the degree of responsibility of the offender:
Criminal
    Code
, s. 718.1. The principle of parity must also be taken into account,
    involving the idea that similar offenders who commit similar offences in
    similar circumstances should receive similar sentences:
Friesen
, at
    para. 31;
Criminal Code
, s. 718.2(b).

[30]

While the trial judge referred to some
    authorities that had been provided to him by counsel during the sentencing
    hearing, he found that they were not helpful due to the individual
    circumstances of each particular case. In the end, he disregarded those
    authorities altogether and imposed a sentence well above any sentence that has
    previously been imposed for like offenders in like circumstances.

[31]

The fact that each crime has its own unique
    circumstances, and is committed by its own unique offender, does not mean that
    parity has no role to play in the sentencing process. While sentencing ranges
    cannot be seen as straitjackets, and under or overshooting a range will not
    on its own give rise to a demonstrably unfit sentence, parity remains a strong
    principle of sentencing, one that exists as an expression of the principle of
    proportionality: Friesen, at paras. 32, 37, 108;
Lacasse
, at paras.
    58, 60-61. Consequently, the principle of proportionality is respected, in
    part, by referring to sentences imposed in other cases, sentences that reflect
    the collective experience and wisdom of the judiciary:
Friesen
, at
    para. 33.

(b)

Guidance From Prior Authorities

[32]

The parties point to
R. v. Lacroix
,
    2009 QCCS 4519, [2009] R.J.Q. 2569, as the high-water mark for sentences in
    large-scale frauds. In
Lacroix
, Wagner J. (as he then was) imposed a
    13-year sentence. Mr. Lacroix pled guilty, but only on the eve of trial. He
    defrauded 9,200 victims over a four-year period. The victims lost almost $100
    million and the impact on them was devastating. The ill-gotten gains funded the
    accuseds lavish lifestyle. There was a breach of trust, and the sentencing
    judge found beyond a reasonable doubt that the accuseds actions adversely
    affected the Canadian economy and shook investors:
Lacroix
, at para.
    37. Wagner J. referred to the case as unprecedented in the annals of Canadian
    legal history: at para. 4.

[33]

In
R. v. Erez
, 2019 ONCA 204, the
    appellant was convicted of a large-scale Ponzi-like scheme involving numerous
    victims over several years, resulting in over $6 million in losses. He had a
    prior criminal record for fraud-related offences and committed the bulk of the
    present fraudulent transactions while serving a conditional sentence or on
    probation for previous forgeries. While he pled guilty, the mitigating effect
    of that plea was attenuated as he worked to have the guilty plea struck. He
    failed in that endeavour and then unsuccessfully appealed on the basis that the
    plea judge erred in refusing to strike the plea. Like this case, the victim
    impact was devastating, and the appellant used the money for his own personal
    gain. He received an eight-year sentence, described by this court as the top
    of the sentencing range.

[34]

In
R. v. Eizenga
, 2011 ONCA 113, 273
    O.A.C. 98, the appellant engaged in a very serious breach of trust, committing
    a large-scale fraud involving several hundred victims and about $37 million.
    Much of the money had been moved off-shore. Although he pled guilty, he later
    challenged that plea. This court found that the plea was valid. While he
    appealed from the restitution order, he did not appeal from the eight-year
    custodial term that had been imposed after trial. This court commented on the
    fact that the prospects for his rehabilitation appeared good.

[35]

Crown counsel also points to the recent
    sentencing decision in
R. v. Holden
, 2020 ONSC 132, where Dambrot J.
    imposed a 12-year sentence for a large-scale fraud involving a Ponzi scheme.
    The total amount of the fraud in that case was $54,159,737 with 65 victims,
    many of whom were vulnerable and unsophisticated. The victim impact was
    devastating; many of the victims lost their life savings. The accused used the
    money for his own self-enrichment and to advance the Ponzi scheme.

[36]

Importantly, unlike this case, the accused in
    Holden had both a criminal and a
Securities Act
record when he
    committed the crimes for which he was sentenced:
Securities Act
, R.S.O.
    1990, c. S.5. In 1995 he was convicted of 46
Securities Act
offences.
    In 2000, he pled guilty to three counts of fraud over $5,000 and was sentenced
    to six years in custody for what this court described as a massive complex
    fraud perpetrated on hundreds of victims:
R. v. Holden
, [2000] O.J.
    No. 3481 (C.A.).

[37]

Counsel also points to sentences imposed by
    trial courts, including in other provinces, for large-scale Ponzi-related
    frauds:
R. v. Johnson
, 2010 ABQB 546, revd 2010 ABCA 392, 265 C.C.C.
    (3d) 443 (13 years decreased to 10 years on appeal);
R. v. Jones
, 2010
    QCCQ 851 (joint submission for 11 years involving over $50 million in losses
    and over 150 victims);
R. v. Lewis
, 2014 ONSC 4188 (seven years)
[1]
.  The accused stood in
    significant positions of trust in each of those cases and the victim impact was
    equally devastating to the victim impact in this case.

[38]

The appellant also points to
R. v. Drabinsky
,
    2011 ONCA 582, 107 O.R. (3d) 595, where this court referred to the trial
    judges determination of a 5- to 8-year range for premeditated frauds involving
    public companies. While this court referred to the fact that the range may
    fluctuate somewhat at both ends of that spectrum, crimes of this nature were
    said to normally attract significant penitentiary terms: at para. 164.

[39]

Crown counsel says that
Drabinksy
must
    be approached with caution, particularly given that the offences for which the
    appellants were sentenced were committed at a time prior to the increase in the
    maximum sentence for fraud over $5,000 from 10 to 14 years: s. 380(1)(a),
Criminal
    Code
, R.S.C. 1985 c. C-46, as amended by S.C. 2004, c. 3, s. 2. Crown
    counsel relies upon the recent comments in
Friesen
, at para. 97, where
    the majority points to increases in maximum sentences as reflecting
    Parliaments desire for such offences to be punished more harshly". An
    increase in maximum sentence should be understood, therefore, as shifting the
    distribution of proportionate sentences for an offence: Friesen, at para. 97.
    Therefore, Crown counsel correctly points out that those authorities that were
    decided at a point in time prior to the increase in the maximum sentence must
    be considered in that light.

[40]

One thing becomes clear through a review of the
    previous authorities. While there is a fairly broad range of sentence for
    large-scale frauds of this nature involving significant breaches of trust, in
    the 8- to 12-year range, a 14-year sentence has not been imposed, even in cases
    where the facts were more egregious than the ones here.

[41]

Of course, there are all manner of aggravating
    and mitigating factors that can apply in a case that will land the sentence
    lower or higher within that range, or that may drive the sentence below or
    above that range. Even so, the historical portrait painted by the range
    provides good guidance when sentencing for offences of this nature.

(c)

The Appropriate Disposition

[42]

Friesen
is
    clear in its guidance to appellate courts. Despite the need to sentence afresh
    where an error in principle that had an impact on the sentence is found, a
    large degree of deference still applies. As stated by the court in
Friesen
,
    at para. 28:

[I]n sentencing afresh, the appellate court
    will defer to the sentencing judges findings of fact or identification of
    aggravating and mitigating factors, to the extent that they are not affected by
    an error in principle. This deference limits the number, length, and cost of
    appeals; promotes the autonomy and integrity of sentencing proceedings; and
    recognizes the sentencing judges expertise and advantageous position.
    [Citations omitted.]

[43]

Taking this deferential approach, I accept the
    sentencing judges findings of fact, including, as previously reviewed, about
    the amount of the fraud, the number of victims, the appellants abuse of a
    position of trust as well as his professional obligations, the length of time
    over which the fraud was perpetrated, the appellants honing in on many
    particularly vulnerable people, the fact that he personally benefited from the
    crime, and the trail of human suffering left in the appellants wake.

[44]

There is a reason that denunciation and general
    deterrence are the primary sentencing principles when it comes to large-scale
    Ponzi-related frauds of this nature. While serious frauds may not involve
    physical violence, it is a mistake of serious proportion to think that they do
    not leave just as many seriously wounded behind, often with financial and
    mental scars that will never heal. The futures they worked so hard to build are
    stolen from them because they trusted a professional who they justifiably
    believed had their best interests in mind.

[45]

The devastating impact of frauds of this nature
    stretch beyond the direct victims who unwittingly find themselves in harms
    way. They have the potential to adversely affect the stability of the Canadian
    economy, financial systems and markets, as well as investor confidence in such
    markets. That is why s. 380.1(1)(b) of the
Criminal Code
requires that
    sentencing judges take this factor into account as an aggravating factor on
    sentence. While there was no direct evidence that this fraud impacted the
    Canadian economy, some of the victims addressed the fact that their confidence
    in investing had been shaken to the core.

[46]

Crown counsel places fresh evidence before the
    court, arguing that it assists with demonstrating the danger that the appellant
    continues to pose for the future. The fresh evidence consists of a two-page
    police affidavit and a Parole Board decision, revoking the appellants day
    parole. Section 687(1) of the
Criminal Code
allows the court on a
    sentence appeal to receive evidence it thinks fit to require or receive. The
    well-known criteria for admitting fresh evidence on a conviction appeal also
    apply on sentencing:
Lacasse
, at paras. 115-16;
R. v. Palmer
,
    [1980] 1 S.C.R. 759.

[47]

The evidence suggests that the appellant
    originally received accelerated day parole. In violation of his parole
    officers direction, he pursued the publication and sale of a book that is
    described as containing strategies on becoming financially secure.

[48]

The appellant also met with a person who is
    described as being financially vulnerable and suggested an arrangement to
    lend her money to buy into a series of informational courses. She would then
    assist him in soliciting others to buy the book and take the courses at a cost
    of $5,000 per person. She reported that discussion to the police. The police
    then reported the matter to the appellants parole officer. No criminal charges
    were laid.

[49]

In its decision revoking parole, the Parole
    Board refers to positive aspects of the appellants release into the community,
    his lack of any criminal charges, compliance with specific conditions of
    release and positive behaviour in the Community Residential Facility where he
    was staying. The decision also makes reference to the willingness of the
    appellants employer to continue to work with him and, if needed, provide more
    structure in the working environment.

[50]

Despite that positive behaviour, the Board
    concluded that having pursued the book matter, contrary to his parole officers
    specific direction, the appellant showed a lack of insight into his offending
    cycle and prior behaviours. In the end, the Board revoked the appellants
    parole because of his deemed risk to the community.

[51]

Crown counsel argues that the fresh evidence
    should be admitted because it has a direct bearing on the question of what
    constitutes a fit sentence. The evidence is said to underscore that the
    appellants attitude toward the offences remains unchanged, that he has no
    respect for authority, continues with deceptive behaviour and has little hope
    for rehabilitation.

[52]

The appellant cautions this court about using
    the fresh evidence. He opposes the characterization of some of the evidence,
    particularly the reference to the person the appellant met as being
    financially vulnerable. The appellant argues that the allegations constitute
    aggravating factors and, given how the Crown is endeavouring to use them, they
    must be proven beyond a reasonable doubt:
Criminal Code
, s. 724(3)(e);
R. v. Gardiner
, [1982] 2 S.C.R. 368. The appellant argues that the
    Crown has failed to do so.

[53]

It is important to start with the observation
    that the appellant can only be punished for the conduct that he was convicted
    of. He cannot be punished, or be seen to be punished, for conduct that is
    alleged to have occurred a year after his sentence was imposed.

[54]

As well, I would observe that when a person
    breaches their parole, the Parole Board has the authority to deliver a decisive
    response, one that will often have a direct impact on the offenders liberty
    interest. That is what happened in this case. The appellants breach of parole
    was acted upon and he was reincarcerated. Indeed, his last almost ten months of
    incarceration have been the direct result of the revocation of his parole as a
    result of the activity that is now said to be relevant fresh evidence informing
    the fitness of sentence to be imposed on appeal.

[55]

As noted in
R. v. Sipos
, 2014 SCC 47,
    [2014] 2 S.C.R. 423, at para. 30, [f]resh evidence addressing events that have
    occurred between the time of sentencing and the time of appeal may raise
    difficult issues which bring competing values into sharp relief. There are
    clear institutional limitations placed upon appellate courts, such that
    deciding sentencing appeals based upon after-the-fact developments could both
    jeopardize the integrity of the criminal process by undermining its finality
    and surpass the appropriate bounds of appellate review:
Sipos
, at
    para. 30.

[56]

In my view, the fresh evidence in this case
    could, at its highest, do no more than demonstrate a continued lack of insight
    by the appellant into his offences which, even this many years later, could
    signal a potential risk of reoffending:
R. v. Boone
, 2020 ONCA 154, at
    para. 28. We do not need fresh evidence to satisfy us of this point. The trial
    and sentencing record are clear in this regard.

[57]

Crown counsel also argues that virtually every
    aggravating factor was present in this case, justifying the maximum sentence.
    Those factors have been previously reviewed. They are rightly described as
    aggravating factors on sentence. The fact is, though, that these aggravating
    factors are present in almost all frauds of this nature.

[58]

The task is not to simply check off the
    aggravating factors with a view to imposing the maximum sentence if each box is
    ticked. The key is to consider the circumstances underlying each factor and
    position it on the scale of seriousness. If proportionality and parity are to
    have meaning, calibrating the seriousness of the aggravating factors is
    critical to the sentencing exercise.

[59]

Accepting the trial judges view of the
    aggravating factors in this case, removing the factor that was infected by
    error, looking at the facts as he found them, and considering them against
    prior authorities, specifically this courts prior authorities, I find that a
    fit sentence is one of ten years.

VI. CONCLUSION

[60]

Leave to appeal sentence is granted, the appeal
    is allowed, the sentence is varied to ten years. The credit for pre-sentence
    custody remains the same. The restitution order remains the same. The fine in
    lieu of forfeiture order remains the same, including the ten-year custodial
    term that the appellant must serve if he fails to make good on that order in
    accordance with its terms.

[61]

All other aspects of the sentence remain the
    same.

Released: M.F. June 10, 2020

Fairburn
    J.A.

I agree.
    I.V.B. Nordheimer J.A.

I agree.
    Harvison Young J.A.

[1]
The sentencing in Lewis was done in accordance with s. 380(1)(a) of
    the Criminal Code as it stood prior to the increase in maximum penalty from 10
    to 14 years: Lewis, at para. 14.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robertson, 2020 ONCA 367

DATE: 20200611

DOCKET:
C66917

Hoy, MacPherson and Tulloch
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shaine Robertson

Appellant

Shaine Robertson, acting in person

Dan Stein, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: June 3, 2020 by video conference

On appeal from the sentence imposed by
    Justice Johanne Lafrance-Cardinal of the Superior Court of Justice, dated April
    18, 2019.

REASONS FOR DECISION

[1]

Between September 30 and November 6, 2018, the
    appellant went on a drug-fuelled rampage in Cornwall, Ontario, which included
    breaking and entering and robbery of ten establishments, ranging from chip
    stands and food trucks to a convenience store to Pet Valu, a larger commercial
    establishment.

[2]

He pled guilty to two counts of robbery, eight
    counts of breaking and entering, attempt break and enter, dangerous operation
    of a motor vehicle, failure to comply with a probation order, two counts of
    failure to comply with a recognizance, possession of a break-in instrument, and
    disguise with intent.

[3]

Consistent with the joint submissions of the Crown
    and counsel for the appellant at the sentencing hearing as to the length of
    imprisonment, the sentencing judge imposed a global sentence of four and one-half
    years imprisonment. She also made orders under s. 738(1)(a) of the
Criminal
    Code,
R.S.C., 1985, c. C-46,
which require the appellant to pay restitution in the total amount of
    $15,698.34 to some of the persons whose property he damaged.

[4]

The appellant argues that the sentencing judge
    erred by failing to consider whether the appellant had the ability to make
    restitution before imposing orders under s. 738(1)(a) and that the orders under
    s. 738(1)(a) will likely impair his chances of rehabilitation. He submits that
    the restitution orders should be set aside.

[5]

We agree.

[6]

A restitution order forms part of a sentence. It
    is entitled to deference and an appellate court will interfere with the
    sentencing judges exercise of discretion only if there is an error in
    principle, or if the order is excessive or inadequate:
R. v. Devgan
(1999), 136 C.C.C. (3d) 238 (Ont. C.A.), at para. 28, leave to appeal refused,
    [1999] S.C.C.A. No. 518;
R. v. Castro
, 2010 ONCA 718, 102 O.R. (3d)
    609, at para. 22.

[7]

An order for compensation should be made with
    restraint and caution:
Devgan
, at para. 26, citing
The Queen v.
    Zelensky
, [1978] 2 S.C.R. 940.

[8]

While the offenders ability to make restitution
    is not a precondition to the making of a restitution order, it is an important
    factor that must be considered before a restitution order is imposed. A
    restitution order made by a sentencing judge survives any bankruptcy of the offender:
Bankruptcy and Insolvency Act
, R.S.C., 1985, c. B-3, s. 178(1)(a). This
    means it is there for life. A restitution order is not intended to undermine
    the offenders prospects for rehabilitation. This is why courts must consider
    ability to pay before imposing such an order:
Castro
, at paras. 26-27;
R. v. Popert
, 2010 ONCA 89, 251 C.C.C. (3d) 30, at para. 40, citing
R.
    v. Biegus

(1999), 141 C.C.C. (3d) 245 (Ont. C.A.), at para. 15. It
    is not enough for the sentencing judge to merely refer to or be aware of an
    offenders inability to pay. The sentencing judge must weigh and consider this:
Biegus
,
at para. 22.

[9]

The restitution orders were not part of the
    parties joint submission on sentence. The Crown handed up a table of the
    damages suffered by the various establishments, and in a single sentence asked
    for stand-alone orders.

[10]

In response, counsel for the appellant at the
    sentencing hearing submitted:

Just with respect to the restitution Ill ask
     if the court is going to impose restitution, it would be 738 orders, given
    that hes not going to be in any position to payany restitution for the next
    few years.

[11]

While the sentencing judges reasons explain how
    she calculated the
amount
of the restitution
    orders (and she did so carefully), they do not contain any analysis of the
    appellants ability to make restitution or of the impact of the orders on his
    prospects for rehabilitation. During the appellants counsels sentencing
    submissions, the sentencing judge inquired whether the appellant had ever
    worked. Respectfully, however, she did not conduct a meaningful inquiry into
    the appellants ability to pay and the impact of the restitution orders on the
    appellants prospects for rehabilitation. In failing to do so, she erred in
    principle.

[12]

The sentencing judge was faced with an offender
    who, at the time of sentencing, was 32 years of age. He has a grade 12
    education. The appellant reported that he had held a job in the restaurant
    industry for a decade steady in his twenties. The appellant had also worked
    out west in the pipelines. Whatever his employment history, at the time of the
    offences, the appellant was unemployed and seriously addicted to cocaine and
    opiates.

[13]

The aggregate amount of the restitution orders is
    significant to someone in the appellants circumstances. On release, the
    appellant will continue to have to battle his addictions as he seeks to become
    a productive member of society and provide support to his young daughter, and
    he will do so without the benefit of higher education and hampered by a
    criminal record.

[14]

As the sentencing judge noted, the appellant had
    a lengthy criminal record for a person of his age. However, before these
    offences, the longest period the appellant had served was 119 days of pre-trial
    custody. The period in custody for these offences will hopefully have provided
    the appellant with the ability to obtain treatment for his addictions and put
    him on the road to rehabilitation.

[15]

In our view, the restitution orders made
    undermine the prospects for that rehabilitation.

[16]

Accordingly, the appeal is allowed and
    the restitution orders are set aside.

Alexandra
    Hoy J.A.

J.C. MacPherson J.A.

M. Tulloch J.A.