The Significance of Offering to Make Restitution in a Fraud Case


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.

Like a guilty plea, making restitution prior to sentencing is a clear acknowledgment of responsibility and an important step towards rehabilitation.

An offender's ability and willingness to pay restitution is an important consideration in the sentencing of fraud and related offences.

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.

In the context of a fraud or related offence, the failure of a sentencing judge to take a restitution offer into account is an error in principle.

R. v. Mathur, 2017 ONCA 403, at para. 10.

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).

However, merely identifying an error on sentencing will not displace the customary deference afforded to sentencing judges; nor does it automatically warrant appellate intervention.

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 judge’s decision that such an error had an impact on the sentence.

R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44, per Wagner J; see also R. v. Fraser, 2016 ONCA 745, 33 C.R. (7th) 205, at paras. 17-20; R. v. Mathur, 2017 ONCA 403, at para. 10.

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; R. v. Mathur, 2017 ONCA 403, at para. 12.

Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca)




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