



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawrence, 2018 ONCA 676

DATE: 20180803

DOCKET: C63424

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leston Everest Lawrence

Appellant

Leston Everest Lawrence,
    acting in person

Erin Dann, appearing as duty counsel

Deborah Calderwood, for the respondent

Heard: July 11, 2018

On appeal from the sentence imposed
    by Justice Peter K. Doody of the Ontario Court of Justice on February 2, 2017,
    with reasons reported at 2017 ONCJ 66.

REASONS FOR DECISION

OVERVIEW

[1]

After a judge alone trial, the appellant was convicted of several
    charges relating to the theft and money laundering of gold from the Canadian
    Mint, where he was employed.

[2]

The sentencing judge conditionally stayed some of the charges to avoid
    double punishment. He ultimately sentenced the appellant to two years and six
    months in custody on the remaining charges for which the appellant was
    convicted, namely: conveying gold out of the Canadian Mint contrary to
Criminal
    Code
, s. 459(c); laundering proceeds of crime contrary to
Criminal
    Code
, s. 462.31(1)(a); and breach of trust by a public official contrary
    to
Criminal Code
, s. 122.

[3]

The sentencing judge made a restitution order pursuant to
Criminal
    Code
, s. 758 in the amount of $190,000. He imposed a fine in lieu of
    forfeiture in the same amount pursuant to
Criminal Code
, s. 462.37(3).
    Finally, he ordered that the appellant serve a further consecutive term of two
    years and six months in prison if he does not pay the fine in lieu of
    forfeiture within three years of the expiration of any term of imprisonment.

[4]

The appellant initially appealed his conviction but has now abandoned
    that appeal. He has also chosen to limit his request for leave to appeal
    sentence to the quantum of the restitution order and the quantum of the fine in
    lieu of forfeiture order. If his challenge to the quantum of the fine in lieu
    of forfeiture succeeds, the appellant also seeks to have the period he must
    serve in lieu of payment shortened. Finally, he asks this court to extend his
    time to pay the fine in lieu of forfeiture.

THE RESTITUTION ORDER

[5]

The appellant was found to have stolen and sold gold pucks produced by
    the Canadian Mint. At the time of the crime, the gold pucks had a value of $165,451.14.
    The value of gold increased pending the completion of the appellants trial. At
    the time of sentencing the pucks had a market value of modestly more than
    $190,000.

[6]

In relevant part, s. 738(1)(a) requires a sentencing judge to consider
    making a restitution order in an amount not exceeding the replacement value of
    the property as of the date the order is imposed. The sentencing judge relied
    on
Criminal Code
, s. 738(1) to impose a restitution order that would
    represent the market value of $190,000.

[7]

With the assistance of duty counsel, the appellant submits that the sentencing
    judge erred when quantifying the restitution order. Duty counsels main
    submission is that the replacement value and market value differ in this case.
    Since the Canadian Mint buys gold products in bulk at a discount, the replacement
    value is less than $190,000, and so the amount of the restitution order should
    be reduced.

[8]

We would not give effect to this argument, which was made for the first
    time on appeal. The stolen gold pucks had been refined by the Canadian Mint and
    were more than 99% pure. That is what required replacement. The replacement
    value of the stolen products was the market value.

[9]

Duty counsel further submits that the sentencing judge erred in the
    exercise of his discretion to award replacement value restitution by not
    applying the principle of restraint in establishing the quantum of the
    restitution order, by failing to recognize that the Canadian Mint is not a
    particularly vulnerable victim, and by not properly considering the appellants
    ability to pay the amount of restitution ordered. We would not give effect to
    these arguments either.

[10]

Restitution
    orders are made to make the victim whole. The discretion of a sentencing judge
    to provide replacement value restitution to accomplish that objective does not
    offend the principles of restraint.

[11]

In
    our view, there is no merit in the vulnerability argument. It was recognized in
R. v. Castro
, 2010 ONCA 718, 102 O.R. (3d) 609, that large
    institutions may be less vulnerable than others, and that this can affect
    whether to make a restitution order. There is no requirement, however, that
    restitution orders must be lower for institutional victims. The sentencing judge
    in this case was alive to the nature of the breach of trust that the appellants
    acts entailed and he properly adjudged that breach of trust to be serious.

[12]

On
    the facts as found at trial, it was open to the sentencing judge to quantify
    restitution based on replacement value.

[13]

Nor
    did the sentencing judge fail to consider the appellants ability to pay the
    restitution he ordered. During the sentencing hearing, all parties proceeded on
    the basis of the appellants counsels assurance that the appellant could pay
    restitution. In any event, where, as here, a breach of trust is particularly
    egregious, a restitution order may be imposed even where repayment does not
    appear to be likely:
R. v. Wa
, 2015 ONCA 117, at para. 12.

THE FINE IN LIEU OF FORFEITURE

[14]

In
    our view, the sentencing judge erred by using the market value of the gold as
    the amount of the fine. The purpose of a fine in lieu of forfeiture is to
    deprive an offender of the proceeds of crime.
Criminal Code
, s.
    462.37(1) provides for the forfeiture of property that is the proceeds of
    crime. Pursuant to
Criminal Code
, s. 462.37(3), the fine in lieu of
    forfeiture is to be the value of the proceeds of crime. The value of the
    proceeds of crime is not necessarily the value of the property:
R. v.
    Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392, at paras. 10 and 16. The fine is
dealt with separately from, and in addition to, the punishment
    for committing a crime: see
Lavigne
, at para.
    26.

[15]

The sentencing judge found that the proceeds of
    crime was the money the appellant received in exchange for the gold. At para. 56
    he said: The pucks were sold, producing cash which was proceeds of crime. Based
    on this finding, the sentencing judge was bound to set the amount of the fine
    at $130,206.19.

TIME OF INCARCERATION IN DEFAULT OF PAYMENT

[16]

Notwithstanding
    that we are lowering the fine in lieu of forfeiture, we do not disturb the time
    of two and one-half years in custody that the appellant will have to serve if
    that fine is not paid. As indicated, the sentencing hearing proceeded on the
    representation that the appellant could pay restitution. Yet he has not paid
    any restitution to date.

[17]

The
    appellant admitted that he has yet to sell his house because he prefers to wait
    for it to increase in value. He offers no repayment plan. We see no basis for
    lowering the default sentence should the appellant choose not to pay the fine.

THE REQUEST FOR EXTENSION OF TIME TO PAY

[18]

For
    the same reasons, we do not extend the time that the appellant will have to pay
    the fine in lieu of forfeiture of three years as ordered by the sentencing judge.

CONCLUSION

[19]

Leave
    to appeal is granted with respect to the restitution order and the fine. The
    appeal as to the restitution order is dismissed. The appeal as to the fine in
    lieu of forfeiture is allowed, and the fine is reduced to $130,206.19.

[20]

The
    conviction appeal is dismissed as abandoned.

M.L. Benotto J.A.

G.T. Trotter J.A.

David M. Paciocco J.A.


