



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wagar, 2018 ONCA 931

DATE: 20181121

DOCKET: C64974

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Wagar

Appellant

Christen Cole, for the appellant

Lorna Bolton, for the respondent

Heard: November 5, 2018

On appeal from sentence entered by Justice Wolfram
    Tausendfreund of the Superior Court of Justice, on August 22, 2016.

REASONS FOR DECISION

[1]

On November 5, 2018, this court heard and gave oral reasons for dismissing
    the appellants conviction appeal. We then heard his sentence appeal and
    reserved our decision. These are our reasons on the sentence appeal.

[2]

The appellant was convicted of two counts of fraud over $5,000. He was
    sentenced to 5.5 years in custody and a restitution order in the amount of the
    total loss to the victims: $799,600. He raises three grounds of appeal in
    relation to the custodial term and one ground of appeal in relation to the
    amount of restitution.

[3]

At his guilty plea, the appellant acknowledged that as their financial
    adviser, he defrauded three people, including a disabled man and an elderly
    woman, of almost $800,000. As emphasized by the trial judge, the appellant
    stood in a position of trust in relation to his victims. He was their friend
    and financial advisor and they trusted him to invest their funds. Instead, he
    used all of those funds to his own benefit. None of the funds were ever
    invested in the way that the appellant led the victims to believe the funds
    would be invested. The victims money was used to pay the appellants tax debt,
    utility bills, loans, and credit card debts.

[4]

The trial judge found that the offences were motivated by pure greed and
    that the victim impact was extreme. One of the victims had been involved in a
    very serious motor vehicle collision that had left him hospitalized for months
    and with permanent injury. The funds that he and his wife entrusted to the
    appellant were the entirety of the insurance settlement arising from the
    accident. The fraud left the victim unable to afford his ongoing physiotherapy,
    leaving him in considerable physical pain.

[5]

The other victim was an 81 year old widow. She and her husband had
    become friends with the appellant over time and she trusted the appellant with
    her money after the loss of her husband. One of her sons died shortly after and
    another developed a life altering illness that required him to stop work. When
    the victim was defrauded of her life savings, she was unable to provide her
    ailing son with necessary financial assistance. By the time of sentencing, she
    was also in ill health.

[6]

The betrayal of the victims is palpable.

[7]

The appellant raises three grounds of appeal against the custodial term
    imposed.

[8]

First, he argues that the sentence was demonstrably unfit and that he
    should have received a two-year sentence. We disagree.

[9]

We start by noting that his trial counsel acknowledged that the correct
    range of sentence was two to five years in custody, meaning that the trial
    judge was just six months over what trial counsel acknowledged was the top end
    of the range. The trial Crown submitted the correct range was five to seven
    years.

[10]

We
    see no reason to interfere with the trial judges exercise of discretion in
    imposing a 5.5 year sentence. The sentence is neither manifestly excessive nor
    demonstrably unfit. The appellant exploited highly vulnerable victims, the
    offences involved significant breaches of trust and large sums of money, the
    offences were committed over a lengthy period of time and motivated by greed. The
    devastating victim impact was clear and the pre-sentence report included few
    redeeming features.

[11]

In
    these circumstances, we see no basis upon which to interfere with the sentence
    imposed.

[12]

Second,
    the appellant maintains that the trial judge erred in failing to treat his
    mental illness as a factor in mitigation of sentence. There is no support in
    the record for the fact that the appellant was mentally ill at the time that
    the offences were committed: November 2010 to February 2015. The pre-sentence
    report contained the sole reference to the appellants mental illness, the
    author commenting that the appellant has had some contact with the psychiatric
    community. The author noted that the appellants most recent psychiatric
    evaluation was completed on April 28, 2016. The author of the pre-sentence
    report quoted from the psychiatric report as follows:

Our overall history and todays assessment was limited by
    questionable reliability of information provided by the patient, however with a
    high degree of certainty we can confirm Bipolar Spectrum Disorder diagnosis.

[13]

The
appellant maintains that he should
    receive a reduction in sentence for this potential diagnosis. We disagree. Even
    if he suffers from a psychiatric condition, there is no support for the
    suggestion that he suffered from it at the time of the offences or that the
    condition impacted his involvement in the offences. The onus was on the appellant
    to pursue this matter and establish that fact if he wished to use it as a
    mitigating factor.

[14]

Third, the appellant argues that he
    should receive a reduction in sentence because the trial judge incorrectly
    exercised his jurisdiction to remand him into custody after the finding of
    guilt, but before sentencing. He relies upon
R. v. Nasogaluak,
2010 SCC 6, [2010] 1 S.C.R. 206 in support of that
    proposition. The appellant says that the trial judge erred by failing to
    require the Crown to show cause as to why the appellants form of release
    should be revoked. The trial judge is also said to have erred by failing to
    give the appellant the chance to make submissions before remanding him into
    custody.

[15]

Although we have serious concerns about
    the fact that the appellant was not asked for submissions on whether he should
    be remanded in custody, we find that nothing turns on this ground of appeal.

[16]

The trial judge clearly had cause to
    revoke bail. Between the finding of guilt and the return date, the appellant
    engaged in very concerning conduct. That conduct was discussed in court on the
    day that the appellant was remanded into custody. It included the fact that he
    had posted on Facebook that he was very angry with a number of people,
    including his ex-wife, Crown counsel and his former counsel. He threatened on
    Facebook that no one who fucked me over will get off. Accordingly, this is
    not a case where the appellant was remanded into custody in the absence of serious
    concerns about compliance with bail and public safety. We also note that once
    the appellant retained new counsel, he never sought bail. Moreover, he received
    enhanced credit of 150 days for 86 days in pre-trial custody, exceeding the
    1.5:1 ratio. We do not give effect to this ground of appeal.

[17]

Finally, the appellant takes issue with
    the full amount of restitution imposed. It is said that the trial judge failed
    to take into account the appellants ability to pay and, in fact, acknowledged
    that it was likely that the funds were beyond the reach of these victims
    forever. The appellant maintains that the trial judge erred by imposing full
    restitution without any information regarding the realistic likelihood of
    payment. We disagree.

[18]

We note that there was an exchange
    between the appellants trial counsel and the trial judge on this very point. The
    trial judge asked counsel to articulate his position on restitution, to which
    counsel responded: I think you should order it and that Mr. Wagar agrees.
    While counsel did not know if the appellant would pay, he said that it was the
    appellants intention to do so. In these circumstances, it was open to the
    trial judge to impose the order.

[19]

Moreover, in frauds involving breaches
    of trust, this court has said that the paramount consideration is the claims
    of the victims and that ability to pay should not be a predominant factor.
    Indeed, in circumstances like these, restitution orders can be made even where
    there does not appear to be a likelihood that the appellant will pay:
R.
    v. Castro,

2010 ONCA 718, 261 C.C.C. (3d) 304,
    at para. 28.

[20]

We would grant leave to appeal the
    sentence, but dismiss the sentence appeal.

K. Feldman J.A.
L.B. Roberts J.A.

Fairburn J.A.



