



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reeve, 2020 ONCA 381

DATE: 20200610

DOCKET: C67010

Fairburn, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Reeve

Appellant

Erin Dann and Angela Ruffo, for the
    appellant

Catherine Weiler, for the respondent

Heard: May 26, 2020 by
    Videoconference

On appeal from the sentence imposed on
    June 22, 2018 by Justice Antonio Skarica of the Superior Court of Justice,
    sitting without a jury.

Fairburn J.A.:

I.

OVERVIEW

[1]

The appellant ran a financial investment company
    and had a good reputation in the financial industry. He got into financial
    difficulty in 2007. Over the next two and a half years, he perpetrated a
    large-scale fraud on 41 unsuspecting clients. As found by the sentencing judge,
    he used the victims money for a number of purposes, including business and
    personal expenses, as well as payments to his ex-wife to fulfill a large
    outstanding support order. As is often the case in classic Ponzi schemes, the
    appellant also used some of the victims money to pay back other victims, ones
    who were becoming suspicious about what had happened to their money. By taking
    the money of some to pay others, the appellant successfully avoided coming to
    the attention of the police for a significant period of time.  At the end of
    the day, the victims were out over $10 million and even larger sums had been
    put at risk.

[2]

The appellant was convicted of fraud over $5,000
    and theft over $5,000. He was sentenced to the maximum term of 14 years
    imprisonment. Given that he had already spent 71 months in pre-sentence
    custody, counsel agreed that he should receive credit in the amount of 8.9
    years. He was provided with an additional 1.1 year of credit due to what the
    trial judge deemed harsh conditions during the 71 months he had spent in
    remand in accordance with the principle laid down in
R. v. Duncan
,
    2016 ONCA 754, at para. 6.

[3]

A restitution order pursuant to s. 738(1)(a) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, issued in the amount of
    $10,887,885. In addition, a fine in lieu of forfeiture was ordered in the same
    amount as the restitution order. The appellant was given ten years following
    the completion of his term of imprisonment to pay the fine. In default of
    payment of the fine, pursuant to s. 462.37(4)(a)(vii), the appellant was
    ordered to serve the maximum term of ten years imprisonment. The fine in lieu
    of forfeiture is to be reduced by any amount paid pursuant to the restitution
    order:
R. v. Waxman
, 2014 ONCA 256, at para. 31.

[4]

The appellant pursues both a conviction and
    sentence appeal. Given the time sensitivity attaching to the sentence appeal,
    the court agreed to hear it first.  On May 29, 2020, leave to appeal the
    sentence was granted, the appeal was granted, and the sentence was varied to
    ten years incarceration. No other aspect of the sentence was appealed.
    Accordingly, the sentence was affirmed in all other respects.

[5]

Written reasons were to follow. These are those
    reasons.

II. THE REASONS FOR SENTENCE

[6]

The sentencing judge spent a good portion of his
    reasons reviewing the devastating impact that the fraud had on the victims.
    About this there is no dispute. The sentencing judge described the victims as
    disabled, the elderly, the grieving spouse, the emotionally vulnerable, the
    close long-time friends, the loyal client, and complete strangers. Many of
    them lost their life savings to the appellant.

[7]

The sentencing judge concluded that there were
    no mitigating circumstances operative in this case. In contrast, he concluded
    that virtually every aggravating circumstance recognized by the
Criminal
    Code
and the case law was present, pointing to:

·

the amount of the fraud and large number of
    victims;

·

the potential to adversely affect investor
    confidence in the financial market;

·

the fact that the appellant took advantage of
    the high regard in which he was held in the investment community, breaching the
    trust of his clients and the industry licencing requirements;

·

the appellants lack of remorse and empathy for
    his victims (as further discussed below);

·

the serious victim impact;

·

the length of time over which the fraud had been
    perpetrated;

·

the appellants motivation being rooted in his
    inflated ego and extravagant lifestyle; and

·

the fact that the appellant exploited the fear
    and panic created by the 2008-2009 worldwide financial crisis  by convincing
    clients/victims, who trusted him, to cash in their losing portfolios and
    convert the monies into safer investments.

[8]

The sentencing judge considered prior
    authorities where sentences had been imposed in like situations, but ultimately
    concluded that they were of little assistance because of what he perceived to
    be the unique circumstances of this case and this offender. Ultimately, he
    concluded that the appropriate disposition was the maximum 14-year sentence.

III. USING A LACK OF REMORSE AS AN
    AGGRAVATING FACTOR

[9]

The appellant raises numerous grounds of appeal.
    It is only necessary to deal with one. It relates to the use of the lack of
    remorse as an aggravating factor on sentence.

[10]

The appellant apologized at the sentencing
    hearing for the fact that the victims had suffered at [his] hands. The
    sentencing judge rejected that apology as hollow. He found that the appellant
    had a complete lack of remorse. It was open to the trial judge to make that
    finding. The difficulty is with how that finding was put to use.

[11]

A genuine expression of remorse can constitute
    an important mitigating consideration at the time of sentencing. When an
    offender demonstrates, through actions and/or words, that he or she is
    genuinely remorseful for his or her conduct, it can show that the offender has
    some insight into his or her past actions and takes responsibility for them.
    Taking responsibility for past conduct is an important step toward
    rehabilitation and gives cause for hope that the offender may be set on a path
    of change. The greater the genuine insight into past offending behaviour, the
    greater the cause for hope.

[12]

While a genuine expression of remorse can serve
    to mitigate a sentence, the opposite is not true. An offender cannot be
    punished for a lack of remorse. The reason is clear. Punishing an accused for
    failing to express remorse comes perilously close to punishing him or her for
    exercising the right to make full answer and defence:
R. v. Valentini
(1999), 43 O.R. (3d) 178 (C.A.), at para. 83. Even after a guilty verdict, an
    accused is entitled to maintain his or her innocence and cannot be punished for
    maintaining that stance.

[13]

Crown counsel emphasizes that, while remorse
    cannot typically be used as an aggravating factor on sentence, there are
    limited exceptions to the rule. This case is said to fall within those
    exceptions. Specifically, Crown counsel points to the fact that a lack of
    remorse may shine a light on the likelihood of future dangerousness, as well
    as inform the applicability of sentencing principles involving specific
    deterrence and rehabilitation:
Valentini
, at para. 82;
R. v.
    P.(B.)
(2004), 190 O.A.C. 354,  at para. 2. See also:
R. v. F.(J.)
,
    2011 ONCA 220, 105 O.R. (3d) 161, affd on other grounds in 2013 SCC 12, [2013]
    1 S.C.R. 565, at para. 85;
R. v. Shah
, 2017 ONCA 872, at para. 8.
    Crown counsel maintains that the trial judges references to the absence of
    remorse should be understood as references to the appellants attitude toward
    the crime, an attitude that underscored his likelihood of future
    dangerousness.

[14]

As supported by the authorities just cited, the
    absence of remorse will sometimes be relevant in the sentencing process. That
    does not mean, though, that someone can be punished for failing to show
    remorse. While a lack of remorse may, in rare circumstances, inform potential
    future dangerousness, which can in turn inform the application of some
    sentencing principles, such as the suitability of emphasizing rehabilitation,
    it must never be used as an aggravating factor that is deserving of punishment.

[15]

Despite Crown counsels capable argument on this
    point, I cannot read the sentencing judge as having used the absence of remorse
    in the limited way that she suggests. In my view, the reasons for sentence make
    clear that the appellant was actually punished for his lack of remorse in the
    face of what the trial judge perceived to be a strong prosecution case.

[16]

The second paragraph of the sentencing judges
    reasons following the heading Aggravating Circumstances reads as follows:

Mr. Reeve has
absolutely no remorse
or
    empathy for the victims.  During his trial evidence, Mr. Reeve
insisted he
    had done nothing wrong despite the absolutely overwhelming evidence of
    fraudulent intent and fraudulent conduct
deliberately perpetrated by Mr.
    Reeve over the indictment period from 2007-2009. [Emphasis added.]

The evidence at this trial and subsequent
    sentencing confirm the following comments found at page 9 of the presentence
    report:

The subject does not take responsibility
    for his offences, and
shows no remorse
for any of his offences. Of
    concern the subject appears to have little to no empathy for the victims
    losses.
He denies any intent to defraud investors in any of his companies
.
    [Emphasis added.]

[17]

Later in the reasons, the absence of remorse was
    directly linked to the decision to impose the maximum custodial term:

When the fraud was done and the money was
    gone, many, if not most, of the victims, were left with lives of complete devastation,
    absolute destitution and utter despair, which in many cases continues to this
    day.
Mr. Reeve, like a true predator, walked away, until his arrest, with
    absolutely no empathy or remorse for the suffering and scarring left behind.

If that scenario does not cry out for a
    maximum sentence, what does
? [Emphasis added.]

[18]

These passages stand in direct opposition to the
    rule that an accused cannot be punished for an absence of remorse.

[19]

Not only was the appellants lack of remorse
    specifically identified as an aggravating factor, but its strength as an
    aggravating factor was directly linked to his having chosen to make full answer
    and defence in the face of what the sentencing judge saw as absolutely
    overwhelming evidence of his guilt.

[20]

Punishing a person for maintaining their
    innocence, based on an after-the-fact determination that the prosecution had a
    strong case, could do serious harm to the criminal justice system. Accused
    persons are entitled to put the Crown to its proof and cannot be punished or
    seen to be punished after-the-fact, simply because the Crown met that burden.
    Accused must be able to assert the right to full answer and defence,
    unencumbered by fear of future implications. To proceed otherwise would
    seriously undermine that fundamental right.

[21]

The fact that the accused was punished for his
    lack of remorse in the face of a strong Crown case, and the sheer strength of
    that factor in the sentencing decision, is evidenced in the rhetorical question
    put just prior to the maximum custodial sentence being announced. The trial
    judge asked, If that scenario does not cry out for a maximum sentence, what
    does? The scenario he was referring to had just been stated in the previous
    paragraph: walking away from the devastated victims with absolutely no empathy
    or remorse for the suffering and scarring left behind.

[22]

In my view, the reasons lead to the inescapable
    conclusion that, among other things, the appellant was punished for his failure
    to show remorse, including by exercising his right to a trial.

IV. DID THE ERROR IN PRINCIPLE HAVE AN IMPACT
    ON THE SENTENCE?

[23]

It is an error in principle to use the absence
    of remorse as an aggravating factor for which the accused should be punished.
    Where an error in principle is found to have had an impact on the sentence, the
    appellate court must perform its own sentencing analysis to determine a fit
    sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    43;
R. v. Friesen
, 2020 SCC 9, at para. 27.

[24]

The question here is whether the trial judges
    error in using the absence of remorse as an aggravating factor had an impact on
    the sentence imposed. Crown counsel argues that it did not, emphasizing that
    virtually every statutory and common law aggravating factor was present in this
    case, justifying the maximum sentence imposed. Therefore, even if remorse was
    wrongfully described as an aggravating factor, the 14-year sentence was still
    called for and this court should not interfere. I disagree.

[25]

On the sentencing judges own words, it was the
    victims suffering and the appellants lack of remorse for that suffering that
    called for the maximum term of imprisonment. Accordingly, I conclude that the
    error in principle is inextricably linked to the imposition of the maximum
    custodial term imposed in this case.

[26]

The question now becomes: what factors should
    the court take into account in sentencing the appellant afresh?

V. SENTENCING THE APPELLANT AFRESH

[27]

In the event that this court sentences the
    appellant afresh, consistent with the Crowns position at trial, Crown counsel
    maintains that the maximum term of imprisonment should be imposed. Consistent
    with his position at trial, the appellant maintains that a custodial term of
    between eight to ten years imprisonment is appropriate.

(a)

Proportionality and Parity Work in Tandem

[28]

Proportionality and parity are key sentencing
    principles.

[29]

Sentences must be proportionate to the gravity
    of the offence and the degree of responsibility of the offender:
Criminal
    Code
, s. 718.1. The principle of parity must also be taken into account,
    involving the idea that similar offenders who commit similar offences in
    similar circumstances should receive similar sentences:
Friesen
, at
    para. 31;
Criminal Code
, s. 718.2(b).

[30]

While the trial judge referred to some
    authorities that had been provided to him by counsel during the sentencing
    hearing, he found that they were not helpful due to the individual
    circumstances of each particular case. In the end, he disregarded those
    authorities altogether and imposed a sentence well above any sentence that has
    previously been imposed for like offenders in like circumstances.

[31]

The fact that each crime has its own unique
    circumstances, and is committed by its own unique offender, does not mean that
    parity has no role to play in the sentencing process. While sentencing ranges
    cannot be seen as straitjackets, and under or overshooting a range will not
    on its own give rise to a demonstrably unfit sentence, parity remains a strong
    principle of sentencing, one that exists as an expression of the principle of
    proportionality: Friesen, at paras. 32, 37, 108;
Lacasse
, at paras.
    58, 60-61. Consequently, the principle of proportionality is respected, in
    part, by referring to sentences imposed in other cases, sentences that reflect
    the collective experience and wisdom of the judiciary:
Friesen
, at
    para. 33.

(b)

Guidance From Prior Authorities

[32]

The parties point to
R. v. Lacroix
,
    2009 QCCS 4519, [2009] R.J.Q. 2569, as the high-water mark for sentences in
    large-scale frauds. In
Lacroix
, Wagner J. (as he then was) imposed a
    13-year sentence. Mr. Lacroix pled guilty, but only on the eve of trial. He
    defrauded 9,200 victims over a four-year period. The victims lost almost $100
    million and the impact on them was devastating. The ill-gotten gains funded the
    accuseds lavish lifestyle. There was a breach of trust, and the sentencing
    judge found beyond a reasonable doubt that the accuseds actions adversely
    affected the Canadian economy and shook investors:
Lacroix
, at para.
    37. Wagner J. referred to the case as unprecedented in the annals of Canadian
    legal history: at para. 4.

[33]

In
R. v. Erez
, 2019 ONCA 204, the
    appellant was convicted of a large-scale Ponzi-like scheme involving numerous
    victims over several years, resulting in over $6 million in losses. He had a
    prior criminal record for fraud-related offences and committed the bulk of the
    present fraudulent transactions while serving a conditional sentence or on
    probation for previous forgeries. While he pled guilty, the mitigating effect
    of that plea was attenuated as he worked to have the guilty plea struck. He
    failed in that endeavour and then unsuccessfully appealed on the basis that the
    plea judge erred in refusing to strike the plea. Like this case, the victim
    impact was devastating, and the appellant used the money for his own personal
    gain. He received an eight-year sentence, described by this court as the top
    of the sentencing range.

[34]

In
R. v. Eizenga
, 2011 ONCA 113, 273
    O.A.C. 98, the appellant engaged in a very serious breach of trust, committing
    a large-scale fraud involving several hundred victims and about $37 million.
    Much of the money had been moved off-shore. Although he pled guilty, he later
    challenged that plea. This court found that the plea was valid. While he
    appealed from the restitution order, he did not appeal from the eight-year
    custodial term that had been imposed after trial. This court commented on the
    fact that the prospects for his rehabilitation appeared good.

[35]

Crown counsel also points to the recent
    sentencing decision in
R. v. Holden
, 2020 ONSC 132, where Dambrot J.
    imposed a 12-year sentence for a large-scale fraud involving a Ponzi scheme.
    The total amount of the fraud in that case was $54,159,737 with 65 victims,
    many of whom were vulnerable and unsophisticated. The victim impact was
    devastating; many of the victims lost their life savings. The accused used the
    money for his own self-enrichment and to advance the Ponzi scheme.

[36]

Importantly, unlike this case, the accused in
    Holden had both a criminal and a
Securities Act
record when he
    committed the crimes for which he was sentenced:
Securities Act
, R.S.O.
    1990, c. S.5. In 1995 he was convicted of 46
Securities Act
offences. 
    In 2000, he pled guilty to three counts of fraud over $5,000 and was sentenced
    to six years in custody for what this court described as a massive complex
    fraud perpetrated on hundreds of victims:
R. v. Holden
, [2000] O.J.
    No. 3481 (C.A.).

[37]

Counsel also points to sentences imposed by
    trial courts, including in other provinces, for large-scale Ponzi-related
    frauds:
R. v. Johnson
, 2010 ABQB 546, revd 2010 ABCA 392, 265 C.C.C.
    (3d) 443 (13 years decreased to 10 years on appeal);
R. v. Jones
, 2010
    QCCQ 851 (joint submission for 11 years involving over $50 million in losses
    and over 150 victims);
R. v. Lewis
, 2014 ONSC 4188 (seven years)
[1]
.  The accused stood in
    significant positions of trust in each of those cases and the victim impact was
    equally devastating to the victim impact in this case.

[38]

The appellant also points to
R. v. Drabinsky
,
    2011 ONCA 582, 107 O.R. (3d) 595, where this court referred to the trial
    judges determination of a 5- to 8-year range for premeditated frauds involving
    public companies. While this court referred to the fact that the range may
    fluctuate somewhat at both ends of that spectrum, crimes of this nature were
    said to normally attract significant penitentiary terms: at para. 164.

[39]

Crown counsel says that
Drabinksy
must
    be approached with caution, particularly given that the offences for which the
    appellants were sentenced were committed at a time prior to the increase in the
    maximum sentence for fraud over $5,000 from 10 to 14 years: s. 380(1)(a),
Criminal
    Code
, R.S.C. 1985 c. C-46, as amended by S.C. 2004, c. 3, s. 2. Crown
    counsel relies upon the recent comments in
Friesen
, at para. 97, where
    the majority points to increases in maximum sentences as reflecting
    Parliaments desire for such offences to be punished more harshly". An
    increase in maximum sentence should be understood, therefore, as shifting the
    distribution of proportionate sentences for an offence: Friesen, at para. 97.
    Therefore, Crown counsel correctly points out that those authorities that were
    decided at a point in time prior to the increase in the maximum sentence must
    be considered in that light.

[40]

One thing becomes clear through a review of the
    previous authorities. While there is a fairly broad range of sentence for
    large-scale frauds of this nature involving significant breaches of trust, in
    the 8- to 12-year range, a 14-year sentence has not been imposed, even in cases
    where the facts were more egregious than the ones here.

[41]

Of course, there are all manner of aggravating
    and mitigating factors that can apply in a case that will land the sentence
    lower or higher within that range, or that may drive the sentence below or
    above that range. Even so, the historical portrait painted by the range
    provides good guidance when sentencing for offences of this nature.

(c)

The Appropriate Disposition

[42]

Friesen
is
    clear in its guidance to appellate courts. Despite the need to sentence afresh
    where an error in principle that had an impact on the sentence is found, a
    large degree of deference still applies. As stated by the court in
Friesen
,
    at para. 28:

[I]n sentencing afresh, the appellate court
    will defer to the sentencing judges findings of fact or identification of
    aggravating and mitigating factors, to the extent that they are not affected by
    an error in principle. This deference limits the number, length, and cost of
    appeals; promotes the autonomy and integrity of sentencing proceedings; and
    recognizes the sentencing judges expertise and advantageous position.
    [Citations omitted.]

[43]

Taking this deferential approach, I accept the
    sentencing judges findings of fact, including, as previously reviewed, about
    the amount of the fraud, the number of victims, the appellants abuse of a
    position of trust as well as his professional obligations, the length of time
    over which the fraud was perpetrated, the appellants honing in on many
    particularly vulnerable people, the fact that he personally benefited from the
    crime, and the trail of human suffering left in the appellants wake.

[44]

There is a reason that denunciation and general
    deterrence are the primary sentencing principles when it comes to large-scale
    Ponzi-related frauds of this nature. While serious frauds may not involve
    physical violence, it is a mistake of serious proportion to think that they do
    not leave just as many seriously wounded behind, often with financial and
    mental scars that will never heal. The futures they worked so hard to build are
    stolen from them because they trusted a professional who they justifiably
    believed had their best interests in mind.

[45]

The devastating impact of frauds of this nature
    stretch beyond the direct victims who unwittingly find themselves in harms
    way. They have the potential to adversely affect the stability of the Canadian
    economy, financial systems and markets, as well as investor confidence in such
    markets. That is why s. 380.1(1)(b) of the
Criminal Code
requires that
    sentencing judges take this factor into account as an aggravating factor on
    sentence. While there was no direct evidence that this fraud impacted the
    Canadian economy, some of the victims addressed the fact that their confidence
    in investing had been shaken to the core.

[46]

Crown counsel places fresh evidence before the
    court, arguing that it assists with demonstrating the danger that the appellant
    continues to pose for the future. The fresh evidence consists of a two-page
    police affidavit and a Parole Board decision, revoking the appellants day
    parole. Section 687(1) of the
Criminal Code
allows the court on a
    sentence appeal to receive evidence it thinks fit to require or receive. The
    well-known criteria for admitting fresh evidence on a conviction appeal also
    apply on sentencing:
Lacasse
, at paras. 115-16;
R. v. Palmer
,
    [1980] 1 S.C.R. 759.

[47]

The evidence suggests that the appellant
    originally received accelerated day parole. In violation of his parole
    officers direction, he pursued the publication and sale of a book that is
    described as containing strategies on becoming financially secure.

[48]

The appellant also met with a person who is
    described as being financially vulnerable and suggested an arrangement to
    lend her money to buy into a series of informational courses. She would then
    assist him in soliciting others to buy the book and take the courses at a cost
    of $5,000 per person. She reported that discussion to the police. The police
    then reported the matter to the appellants parole officer. No criminal charges
    were laid.

[49]

In its decision revoking parole, the Parole
    Board refers to positive aspects of the appellants release into the community,
    his lack of any criminal charges, compliance with specific conditions of
    release and positive behaviour in the Community Residential Facility where he
    was staying. The decision also makes reference to the willingness of the
    appellants employer to continue to work with him and, if needed, provide more
    structure in the working environment.

[50]

Despite that positive behaviour, the Board
    concluded that having pursued the book matter, contrary to his parole officers
    specific direction, the appellant showed a lack of insight into his offending
    cycle and prior behaviours. In the end, the Board revoked the appellants
    parole because of his deemed risk to the community.

[51]

Crown counsel argues that the fresh evidence
    should be admitted because it has a direct bearing on the question of what
    constitutes a fit sentence. The evidence is said to underscore that the
    appellants attitude toward the offences remains unchanged, that he has no
    respect for authority, continues with deceptive behaviour and has little hope
    for rehabilitation.

[52]

The appellant cautions this court about using
    the fresh evidence. He opposes the characterization of some of the evidence,
    particularly the reference to the person the appellant met as being
    financially vulnerable. The appellant argues that the allegations constitute
    aggravating factors and, given how the Crown is endeavouring to use them, they
    must be proven beyond a reasonable doubt:
Criminal Code
, s. 724(3)(e);
R. v. Gardiner
, [1982] 2 S.C.R. 368. The appellant argues that the
    Crown has failed to do so.

[53]

It is important to start with the observation
    that the appellant can only be punished for the conduct that he was convicted
    of. He cannot be punished, or be seen to be punished, for conduct that is
    alleged to have occurred a year after his sentence was imposed.

[54]

As well, I would observe that when a person
    breaches their parole, the Parole Board has the authority to deliver a decisive
    response, one that will often have a direct impact on the offenders liberty
    interest. That is what happened in this case. The appellants breach of parole
    was acted upon and he was reincarcerated. Indeed, his last almost ten months of
    incarceration have been the direct result of the revocation of his parole as a
    result of the activity that is now said to be relevant fresh evidence informing
    the fitness of sentence to be imposed on appeal.

[55]

As noted in
R. v. Sipos
, 2014 SCC 47,
    [2014] 2 S.C.R. 423, at para. 30, [f]resh evidence addressing events that have
    occurred between the time of sentencing and the time of appeal may raise
    difficult issues which bring competing values into sharp relief. There are
    clear institutional limitations placed upon appellate courts, such that
    deciding sentencing appeals based upon after-the-fact developments could both
    jeopardize the integrity of the criminal process by undermining its finality
    and surpass the appropriate bounds of appellate review:
Sipos
, at
    para. 30.

[56]

In my view, the fresh evidence in this case
    could, at its highest, do no more than demonstrate a continued lack of insight
    by the appellant into his offences which, even this many years later, could
    signal a potential risk of reoffending:
R. v. Boone
, 2020 ONCA 154, at
    para. 28. We do not need fresh evidence to satisfy us of this point. The trial
    and sentencing record are clear in this regard.

[57]

Crown counsel also argues that virtually every
    aggravating factor was present in this case, justifying the maximum sentence.
    Those factors have been previously reviewed. They are rightly described as
    aggravating factors on sentence. The fact is, though, that these aggravating
    factors are present in almost all frauds of this nature.

[58]

The task is not to simply check off the
    aggravating factors with a view to imposing the maximum sentence if each box is
    ticked. The key is to consider the circumstances underlying each factor and
    position it on the scale of seriousness. If proportionality and parity are to
    have meaning, calibrating the seriousness of the aggravating factors is
    critical to the sentencing exercise.

[59]

Accepting the trial judges view of the
    aggravating factors in this case, removing the factor that was infected by
    error, looking at the facts as he found them, and considering them against
    prior authorities, specifically this courts prior authorities, I find that a
    fit sentence is one of ten years.

VI. CONCLUSION

[60]

Leave to appeal sentence is granted, the appeal
    is allowed, the sentence is varied to ten years. The credit for pre-sentence
    custody remains the same. The restitution order remains the same. The fine in
    lieu of forfeiture order remains the same, including the ten-year custodial
    term that the appellant must serve if he fails to make good on that order in
    accordance with its terms.

[61]

All other aspects of the sentence remain the
    same.

Released: M.F. June 10, 2020

Fairburn
    J.A.

I agree.
    I.V.B. Nordheimer J.A.

I agree.
    Harvison Young J.A.





[1]
The sentencing in Lewis was done in accordance with s. 380(1)(a) of
    the Criminal Code as it stood prior to the increase in maximum penalty from 10
    to 14 years: Lewis, at para. 14.


