R. v. Castro,

• Jurisdiction: Ontario
• Judge: Weiler, MacPherson and Armstrong, JJ.A.
• Neutral Citation: 2010 ONCA 718
• Citation: (2010), 270 O.A.C. 140 (CA),2010 ONCA 718,102 OR (3d) 609,261 CCC (3d) 304,270 OAC 140,102 O.R. (3d) 609,270 O.A.C. 140,(2010), 270 OAC 140 (CA)
• Date: 04 October 2010
• Court: Court of Appeal (Ontario)

R. v. Castro (C.) (2010), 270 O.A.C. 140 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.060

Her Majesty the Queen (respondent) v. Carlos Castro (appellant)

(C50626; 2010 ONCA 718)

Indexed As: R. v. Castro (C.)

Ontario Court of Appeal

Weiler, MacPherson and Armstrong, JJ.A.

October 28, 2010.

Summary:

The accused had a paralegal firm with his brother. The firm specialized in assisting victims of motor vehicle accidents in reaching personal injury settlements with insurance companies. The accused's clients were new immigrants to Canada whose first language, like his, was Spanish. Many were unemployed and on social assistance or disability pensions. The accused stole from several of his clients. He was found guilty of six counts of theft relating to the settlement money of six clients, two counts of forgery, and one count of fraud. He was sentenced to a total sentence of 23 months' imprisonment and ordered to pay restitution of $141,752. The accused appealed the restitution order.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The Ontario Court of Appeal discussed restitution orders (Criminal Code, s. 738(1)) and concluded "To summarize, a restitution order is simply part of the determination of an overall fit sentence, and general sentencing principles apply. While consideration of the offender's ability to pay and the impact of a restitution order on an offender's rehabilitation are factors to be considered, the weight to be given to these factors will vary depending on the nature of the offence and the circumstances of the offender. When the offence involves a breach of trust, a primary consideration is the effect on the victim; rehabilitation is a secondary consideration. Furthermore, consideration of the ability to pay includes the ability to make payment from the money taken as a source of restitution." - See paragraphs 21 to 35.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The 49 year old accused had a paralegal firm with his brother - They assisted victims of motor vehicle accidents in reaching personal injury settlements with insurance companies - The accused's clients were new immigrants to Canada whose first language, like his, was Spanish - Many were unemployed and on social assistance or disability pensions - The accused stole from several of his clients - He was found guilty of six counts of theft relating to the settlement money of six clients, two counts of forgery, and one count of fraud - He was in a position of trust - The victims were vulnerable and dependent on him and needed the money urgently - There was a substantial level of deceit - There had been no restitution made - The accused was a first time offender - He expressed remorse - He did not intend to steal the money on a permanent basis - His only source of income was a monthly disability payment of $990 - He was sentenced to a total sentence of 23 months' imprisonment and ordered to pay restitution of $141,752 - The Ontario Court of Appeal upheld the restitution order - The sentencing judge exercised his discretion and gave effect to the requisite factors - The accused used his position as a paralegal to engage in a breach of trust vis-à-vis vulnerable disabled persons - He had some future prospects - The disposition of the money obtained by his conduct was unknown - The restitution order might be the only means of preserving the victims' claims against the accused.

Criminal Law - Topic 5793

Punishments (sentence) - Restitution - Considerations - [See both Criminal Law - Topic 5792 ].

Cases Noticed:

R. v. Devgan (R.) (1999), 121 O.A.C. 265; 136 C.C.C.(3d) 238 (C.A.), refd to. [para. 22].

R. v. Siemens (K.G.) (1999), 138 Man.R.(2d) 90; 202 W.A.C. 90; 136 C.C.C.(3d) 353 (C.A.), refd to. [para. 23].

R. v. Zelensky, Eaton (T.) Co. and Canada (Attorney General) et al., [1978] 2 S.C.R. 940; 21 N.R. 372, refd to. [para. 24].

R. v. Fitzgibbon (C.D.), [1990] 1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81, refd to. [para. 25].

London Life Insurance Co. v. Zavitz et al. (1992), 11 B.C.A.C. 164; 22 W.A.C. 164; 12 C.R.(4th) 267 (C.A.), refd to. [25].

R. v. Scherer (1984), 5 O.A.C. 297; 16 C.C.C.(3d) 30 (C.A.), refd to. [para. 25].

R. v. Salituro (1990), 38 O.A.C. 241; 56 C.C.C.(3d) 350 (C.A.), refd to. [para. 25].

R. v. Horne (1996), 34 O.R.(3d) 142 (Gen. Div.), refd to. [para. 25].

R. v. Carter (1990), 9 C.C.L.S. 69 (Ont. Gen. Div.), refd to. [para. 25].

R. v. Ali (K.N.M.) (1997), 98 B.C.A.C. 239; 161 W.A.C. 239 (C.A.), refd to. [para. 26].

R. v. Biegus (J.S.) (1999), 127 O.A.C. 239; 141 C.C.C.(3d) 245 (C.A.), refd to. [para. 26].

R. v. Ford (2002), 2 C.R.(6th) 348 (C.Q.), refd to. [para. 26].

R. v. Yates (A.E.) (2002), 174 B.C.A.C. 119; 286 W.A.C. 119; 169 C.C.C.(3d) 506 (C.A.), refd to. [para. 28].

R. v. Hoyt (L.K.) (1992), 19 B.C.A.C. 231; 34 W.A.C. 231; 77 C.C.C.(3d) 289 (C.A.), refd to. [para. 31, footnote 5].

R. v. Moscone, [1985] B.C.J. No. 1755 (C.A.), refd to. [para. 33, footnote 6].

R. v. Rizzetto (C.M.D.) (2002), 210 N.S.R.(2d) 67; 659 A.P.R. 67 (C.A.), refd to. [para. 33, footnote 6].

R. v. Williams (B.), [2007] O.T.C. Uned. S34; 2007 CanLII 13949 (Sup. Ct.), refd to. [para. 34].

R. v. McEachern (1978), 42 C.C.C.(2d) 189 (Ont. C.A.), refd to. [para. 37].

R. v. Smith (M.A.) (2004), 191 O.A.C. 1 (C.A.), refd to. [para. 37].

R. v. Collalti, [2003] O.J. No. 5353 (Sup. Ct.), refd to. [para. 37].

Authors and Works Noticed:

Canada, Law Reform Commission, Restitution and Compensation, Working Paper No. 5 (1974), generally [para. 34].

Counsel:

Anthony Moustacalis, for the appellant;

Joanne K. Stuart, for the respondent.

This sentencing appeal was heard on October 4, 2010, by Weiler, MacPherson and Armstrong, JJ.A., of the Ontario Court of Appeal. The following reasons for judgment of the court were delivered by Weiler, J.A., and released on October 28, 2010.