



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robertson, 2020 ONCA 367

DATE: 20200611

DOCKET:
C66917

Hoy, MacPherson and Tulloch
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shaine Robertson

Appellant

Shaine Robertson, acting in person

Dan Stein, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: June 3, 2020 by video conference

On appeal from the sentence imposed by
    Justice Johanne Lafrance-Cardinal of the Superior Court of Justice, dated April
    18, 2019.

REASONS FOR DECISION

[1]

Between September 30 and November 6, 2018, the
    appellant went on a drug-fuelled rampage in Cornwall, Ontario, which included
    breaking and entering and robbery of ten establishments, ranging from chip
    stands and food trucks to a convenience store to Pet Valu, a larger commercial
    establishment.

[2]

He pled guilty to two counts of robbery, eight
    counts of breaking and entering, attempt break and enter, dangerous operation
    of a motor vehicle, failure to comply with a probation order, two counts of
    failure to comply with a recognizance, possession of a break-in instrument, and
    disguise with intent.

[3]

Consistent with the joint submissions of the Crown
    and counsel for the appellant at the sentencing hearing as to the length of
    imprisonment, the sentencing judge imposed a global sentence of four and one-half
    years imprisonment. She also made orders under s. 738(1)(a) of the
Criminal
    Code,
R.S.C., 1985, c. C-46,
which require the appellant to pay restitution in the total amount of
    $15,698.34 to some of the persons whose property he damaged.

[4]

The appellant argues that the sentencing judge
    erred by failing to consider whether the appellant had the ability to make
    restitution before imposing orders under s. 738(1)(a) and that the orders under
    s. 738(1)(a) will likely impair his chances of rehabilitation. He submits that
    the restitution orders should be set aside.

[5]

We agree.

[6]

A restitution order forms part of a sentence. It
    is entitled to deference and an appellate court will interfere with the
    sentencing judges exercise of discretion only if there is an error in
    principle, or if the order is excessive or inadequate:
R. v. Devgan
(1999), 136 C.C.C. (3d) 238 (Ont. C.A.), at para. 28, leave to appeal refused,
    [1999] S.C.C.A. No. 518;
R. v. Castro
, 2010 ONCA 718, 102 O.R. (3d)
    609, at para. 22.

[7]

An order for compensation should be made with
    restraint and caution:
Devgan
, at para. 26, citing
The Queen v.
    Zelensky
, [1978] 2 S.C.R. 940.

[8]

While the offenders ability to make restitution
    is not a precondition to the making of a restitution order, it is an important
    factor that must be considered before a restitution order is imposed. A
    restitution order made by a sentencing judge survives any bankruptcy of the offender:
Bankruptcy and Insolvency Act
, R.S.C., 1985, c. B-3, s. 178(1)(a). This
    means it is there for life. A restitution order is not intended to undermine
    the offenders prospects for rehabilitation. This is why courts must consider
    ability to pay before imposing such an order:
Castro
, at paras. 26-27;
R. v. Popert
, 2010 ONCA 89, 251 C.C.C. (3d) 30, at para. 40, citing
R.
    v. Biegus

(1999), 141 C.C.C. (3d) 245 (Ont. C.A.), at para. 15. It
    is not enough for the sentencing judge to merely refer to or be aware of an
    offenders inability to pay. The sentencing judge must weigh and consider this:
Biegus
,
at para. 22.

[9]

The restitution orders were not part of the
    parties joint submission on sentence. The Crown handed up a table of the
    damages suffered by the various establishments, and in a single sentence asked
    for stand-alone orders.

[10]

In response, counsel for the appellant at the
    sentencing hearing submitted:

Just with respect to the restitution Ill ask
     if the court is going to impose restitution, it would be 738 orders, given
    that hes not going to be in any position to payany restitution for the next
    few years.

[11]

While the sentencing judges reasons explain how
    she calculated the
amount
of the restitution
    orders (and she did so carefully), they do not contain any analysis of the
    appellants ability to make restitution or of the impact of the orders on his
    prospects for rehabilitation. During the appellants counsels sentencing
    submissions, the sentencing judge inquired whether the appellant had ever
    worked. Respectfully, however, she did not conduct a meaningful inquiry into
    the appellants ability to pay and the impact of the restitution orders on the
    appellants prospects for rehabilitation. In failing to do so, she erred in
    principle.

[12]

The sentencing judge was faced with an offender
    who, at the time of sentencing, was 32 years of age. He has a grade 12
    education. The appellant reported that he had held a job in the restaurant
    industry for a decade steady in his twenties. The appellant had also worked
    out west in the pipelines. Whatever his employment history, at the time of the
    offences, the appellant was unemployed and seriously addicted to cocaine and
    opiates.

[13]

The aggregate amount of the restitution orders is
    significant to someone in the appellants circumstances. On release, the
    appellant will continue to have to battle his addictions as he seeks to become
    a productive member of society and provide support to his young daughter, and
    he will do so without the benefit of higher education and hampered by a
    criminal record.

[14]

As the sentencing judge noted, the appellant had
    a lengthy criminal record for a person of his age. However, before these
    offences, the longest period the appellant had served was 119 days of pre-trial
    custody. The period in custody for these offences will hopefully have provided
    the appellant with the ability to obtain treatment for his addictions and put
    him on the road to rehabilitation.

[15]

In our view, the restitution orders made
    undermine the prospects for that rehabilitation.

[16]

Accordingly, the appeal is allowed and
    the restitution orders are set aside.


Alexandra
    Hoy J.A.

J.C. MacPherson J.A.

M. Tulloch J.A.



