



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Porter, 2019 ONCA 114

DATE: 20190214

DOCKET: C65884

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roy Porter

Appellant



Scott Hutchison and Roy Porter, for the appellant

Luke Schwalm, for the respondent

Heard: February 12, 2019

On appeal from the conviction entered on April 20, 2018
and the sentence imposed on August 28, 2018 by Justice P.H. Marjoh Agro of the Ontario
Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We see no merit in the conviction appeal. The information was amended
during the trial and there is nothing before us to support the submission that
the amendment was improper.

[2]

We agree that the trial judge appears to have treated the appellant
lack of remorse as an aggravating factor. However, we are not persuaded that we
should interfere with the resulting sentence of one year imprisonment. As held
in
R. v. Lacasse
,
2015
SCC 64, it is open to an appellate court to uphold a fit sentence despite an
error of this nature. The appellant abused a position of trust and took
advantage of his very vulnerable cousin. The fraud was planned and carried out
over a lengthy period. A sentence of one year is entirely appropriate. See
R.
v. Mathur
, 2017 ONCA 403.

[3]

In our view, the trial judge did err by only giving the appellant six
months to pay the fine in lieu of forfeiture. We alter that term of the
sentence to give him two years.

[4]

Finally, it is conceded by the Crown that the victim fine surcharge must
be set aside.

[5]

Sentence appeal allowed but only to the extent ordered above. Conviction
appeal dismissed.




