





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 appellants 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.


