



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Lord, 2012
    ONCA 654

DATE: 20120928

DOCKET: C52043

Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Lord

Appellant

Keith E. Wright, for the appellant

Alexander Hrybinsky, for the respondent

Heard: September 27, 2012

On appeal from the sentence imposed on April 28, 2010 by
    Justice C. Mocha of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

In our view, given the serious nature of this fraud on an elderly
    individual and the appalling record of the appellant for offences of
    dishonesty, the custodial sentence imposed by the trial judge of 18 months was
    entirely fit.

[2]

However, there is fresh evidence to which the Crown has consented that
    prevents very unusual features.

[3]

First, the appellant has made reasonable efforts to overcome his
    alcoholism, a condition that appears to have been a strong factor in his
    criminality.  He has now been alcohol free for 6 ½ years.

[4]

Second, the appellant has made very significant efforts towards full
    restitution. Much of that has occurred post-sentence. He now has repaid the
    victim all but approximately $35,000, and a significant part of that has been
    paid in the past year.

[5]

Third, the victim of the fraud was represented by counsel before us. She
    indicates that the victim is now chiefly concerned with restitution and
    supports our terms for a conditional sentence that will require the appellant
    to make full restitution through regular monthly payments.

[6]

In our view, the fresh evidence before us brings this case with the very
    unusual circumstances in
R. v. Smolyar
(2003).

[7]

Although the appellants conduct merits a significant custodial
    sentence, circumstances have evolved in a way that it would best serve the
    overall administration of justice to craft a sentence that will have
    significant consequences for the appellant but allow and require him to make
    full restitution.

[8]

Accordingly, leave to appeal is granted, the sentence is allowed and a
    conditional sentence of 2 years less a day and probation of 3 years on the
    terms proposed by counsel and appended to this endorsement is imposed.




APPENDIX

Regina v.
    Michael Lord

File No. C52043

A.   Conditional Sentence Order (2 years less 1 day)


(i)   Statutory
      Conditions (Section 742.3(1))

(ii)  Additional
      Conditions (Section 742.3)


1.   During
        the first eight months, remain within his residence (or condominium building)
        at all times, except as permitted in Condition #4;

2.   During
        the 9th to 16th month, remain within his residence (or condominium building)
        each Monday through Friday, except as permitted in Condition #4, and from 11:00
        P.M. until 6:00 A.M. each Saturday evening and Sunday evening;

3.   During
        the 17th to 24th month, remain within his residence (or condominium building)
        from 11:00 P.M. to 6:00 A.M. every day;

4.   The
        exceptions to Conditions #1 and #2 are:

(a) for
        employment, and travelling to and from same;

(b) for
        scheduled medical and dental appointments, and medical and dental emergencies,
        and travelling to and from same;

(c) from 1:00
        P.M. until 5:00 P.M. on Saturdays, for the purpose of attending to personal
        errands (Condition #1 only);

(d) for
        scheduled appointments with conditional sentence supervisor, and travelling to
        and from same;

(e) for
        scheduled appointments with counsel, and travelling to and from same;

(f)  for
        attending court as required and travelling to and from same;

(g) for
        attending meetings of Alcoholics Anonymous, or meetings with counsellor, and
        travelling directly to and from same;

(h) on any
        other occasion, with the prior written permission of the Supervisor;

5.   Attend
        meetings of Alcoholics Anonymous, at least once per week, and more often if so
        directed by Supervisor;

6.   Attend
        such counselling as is deemed necessary by Supervisor;

7.   Not
        associate or communicate, either directly or indirectly, with Prescott Duff,
        except through counsel or through Supervisor;

8.   Pay to
        Prescott Duff, on the 15th day of each month, the sum of $1,000.00, until the
        balance referred to in the Minutes of Settlement, dated September 26, 2011, has
        been paid; and

9.   Abstain
        from the consumption of alcohol or any other intoxicating substance.



B.   Probation Order (3 years)



(i)   Statutory
        Conditions (Section 732.1(2))

(ii)  Additional
        Conditions (Section 732.1(3))


1.   Attend
          meetings of Alcoholics Anonymous, at least once per week, and more often if so
          directed by Supervisor;

2.   Attend
          such counselling as is deemed necessary by Supervisor;

3.   Not
          associate or communicate, either directly or indirectly, with Prescott Duff,
          except through counsel or through Supervisor;

4.   Pay to
          Prescott Duff, on the 15th day of each month, the sum of $1,000.00, until the
          balance referred to in the Minutes of Settlement, dated September 26, 2011, has
          been paid; and

5.       Abstain from the consumption of alcohol or any
          other intoxicating substance.





