



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mathur, 2017 ONCA 403

DATE: 20170518

DOCKET: C59678

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harinarain Mathur

Appellant

Eva Taché-Green, for the appellant

Erin Carley, for the respondent

Heard: May 5, 2017

On appeal from the sentence imposed by Justice Donald McLeod
    of the Ontario Court of Justice, dated September 24, 2014.

Trotter J.A.:

A.

Introduction

[1]

Mr. Mathur appeals from a 12-month prison
    sentence imposed on one count of fraud over $5,000, contrary to s. 380(1)(a) of
    the
Criminal Code
. At the conclusion of the
    hearing of the appeal, the appeal was dismissed with reasons to follow. These
    reasons explain why the appeal was dismissed.

B.

the offence and the offender

[2]

At the time of the offences, the appellant was
    an accountant, as well as a real estate agent and broker. Between December 31,
    2009, and March 30, 2012, using the social insurance numbers and dates of birth
    of his real estate clients, and without their knowledge or consent, the
    appellant prepared 292 false tax returns. He created T4 slips from two
    fictitious companies. He generated small refunds on these tax returns. He
    received a total of $35,321 under this fraudulent scheme, although he attempted
    to obtain $343,840.

[3]

The appellant was 65 years old at the time of
    sentencing. He had no prior criminal record. The appellant had the full support
    of his family. Many character reference letters were filed on his behalf.
    Before sentencing, the appellant took psychological counseling and gained some insight
    into his behaviour. Also, through his counsel, he offered to make restitution
    at the time of sentencing, but this did not happen. I will return to this issue
    below. The appellant has since lost his accreditations to work as an accountant
    and as a real estate agent/broker.

C.

the sentencing judges reasons

[4]

At the sentencing hearing, the Crown requested a
    16 to 18-month jail sentence. The appellant requested a 12-month conditional
    sentence.

[5]

The sentencing judge concluded that a conditional
    sentence was not appropriate in the circumstances of this case. He held that
    general deterrence is the most important factor in fraud cases involving
    breaches of trust, with rehabilitation assuming a secondary role. After listing
    numerous aggravating factors, some of which are discussed below, the sentencing
    judge imposed a sentence of 12 months imprisonment.

D.

analysis

[6]

In her factum, counsel for the appellant advanced a number of arguments why
    this court should intervene and impose a conditional sentence. At the hearing
    of the appeal, Ms. Taché-Green focused on the trial judges failure to consider
    the appellants offer to make restitution before being sentenced, and on the
    overall fitness of the sentence.

[7]

The issue of restitution was raised with the sentencing judge, but in an
    abstruse manner. The appellants trial counsel (not Ms. Tach
é
-Green) said:

Hes prepared to make restitution although restitution itself,
    it doesnt really  I dont think my friend is asking for as such. A fine under
     that Your Honour imposes because this a fine under the revenue law of Canada,
    under s. 734(2) of the
Criminal Code

will go to the Receiver
    General of Canada, so essentially back into the federal coffers. And he has
    well over, well over $35,000 in trust for the  to ensure that the money is, is
    returned to the Canadian taxpayer. So hes prepared to do that and essentially
    that would be restitution that would be offered.

The Crown did not request restitution under s. 738 of
    the
Criminal Code
. No restitution order was made.

[8]

Ms. Tach
é-Green
advised that the
    appellant made unsuccessful efforts to pay restitution. Shortly after
    sentencing, the appellant went bankrupt. At the hearing of the appeal, the
    court was advised that funds may be available to pay restitution, but no
    attempt was made to enlarge the record by way of fresh evidence. The bottom
    line is that restitution has still not been made.

[9]

Restitution advances important goals of
    sentencing, such as provid[ing] reparations for harm done to victims or to the
    community (
Criminal Code
, s. 718(e)), and
    promoting a sense of responsibility in offenders, and acknowledgement of the
    harm done to victims or to the community (s. 718(f)): see Allan Manson,
The
    Law of Sentencing

(Toronto: Irwin Law, 2001), at
    p. 139. Like a guilty plea, making restitution prior to sentencing is a clear
    acknowledgment of responsibility and an important step towards rehabilitation.

[10]

The sentencing judge failed to mention the restitution offer in his
    reasons. I agree with the appellant that the failure to take this into account was
    an error in principle. As Tulloch J.A. said in
R. v. McLellan
, 2012
    ONCA 717, 293 C.C.C. (3d) 326, leave to appeal refused, [2013] S.C.C.A No. 100,
    at para. 44: 
An offender's ability and willingness to pay
    restitution is an important consideration in the sentencing of fraud and
    related offences. In
R. v. Bogart

(2002), 61
    O.R. (3d) 75 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 398, Laskin
    J.A. recognized that the payment of full restitution before sentencing might
    be a special circumstance justifying a conditional sentence where a prison
    sentence is otherwise appropriate (para. 38).

[11]

However, merely identifying an error on sentencing will not displace the
    customary deference afforded to sentencing judges; nor does it automatically warrant
    appellate intervention. As Wagner J. wrote in
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 44:

In my view, an error in principle, the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor will justify appellate intervention
only
    where it appears from the trial judges decision that such an error had an
    impact on the sentence.
[Emphasis added.]

See also
R. v. Fraser
, 2016 ONCA 745, 33 C.R.
    (7th) 205, at paras. 17-20.

[12]

I am not persuaded that the sentencing judges failure to mention or
    consider the appellants offer of restitution had any impact on the sentence he
    imposed. In large fraud cases involving a breach of trust, a genuine offer to
    make full restitution, while important, must take a secondary role to the
    sentencing objectives of general deterrence and denunciation: see
R. v.
    Bertram
(1990), 40 O.A.C. 317, at para. 7; and
R. v. Castro
, 2010
    ONCA 718, 102 O.R. (3d) 609, at paras. 30, 35.

[13]

As an accountant involved in the preparation of tax returns, the
    appellants actions constituted a breach of trust against the Government of
    Canada: see
R.

v.

Leo-Mensah
, 2010 ONCA 139,
    101 O.R. (3d) 366, leave to appeal refused, [2010] S.C.C.A. No. 170, at para.
    11;
R. v. Dwyer
, 2013 ONCA 34, 296 C.C.C. (3d) 193, at paras. 9-10;
    and
R. v. Tennina
, 2013 ONSC 4694, 108 W.C.B. (2d) 267, at para. 3. Moreover,
    the identify thefts from his real estate clients involved multiple breaches of
    trust: see
R. v. Oton
, 2012 ONSC 861, 99 W.C.B. (2d) 877, at para. 13.

[14]

The sentencing judge characterized the offence as a large-scale fraud.
    This was evident from the amount that the appellant attempted to defraud the
    Government ($343,800), despite the smaller amount that he actually recovered ($
35,321)
. I agree that this amounted to a large-scale fraud.
    However, irrespective of the adjective used to describe the level of the appellants
    offending, given the presence of the many aggravating factors in this case, the
    sentencing judge was correct to emphasize general deterrence and denunciation.
    These factors included: (1) the degree of sophistication and planning involved;
    (2) the significant number of transactions (
i.e.
, 292 tax returns); (3)
    the duration of the fraud (over 27 months); (4) the fraud was perpetrated on
    the Government of Canada; and (5) the appellant was caught, as opposed to
    voluntarily terminating his activities.

[15]

In the circumstance of this case, even with an offer of restitution
    (which was ultimately not made), a conditional sentence would not achieve the
    goals of general deterrence and denunciation. The sentence imposed was fit.

E.

Disposition

[16]

I would grant leave to appeal, but dismiss the appeal.

Released:

GTT                                                   G.T.
    Trotter J.A.

MAY 18 2017                                    I agree
    Eileen E. Gillese J.A.

I
    agree Grant Huscroft J.A.


