R. v. Eizenga,

JurisdictionOntario
JudgeWeiler, Laskin and Goudge, JJ.A.
Neutral Citation2011 ONCA 113
Citation2011 ONCA 113,(2011), 273 O.A.C. 98 (CA),270 CCC (3d) 168,[2011] CarswellOnt 697,[2011] OJ No 524 (QL),273 OAC 98,[2011] O.J. No 524 (QL),(2011), 273 OAC 98 (CA),273 O.A.C. 98
Date24 September 2010
CourtCourt of Appeal (Ontario)

R. v. Eizenga (M.) (2011), 273 O.A.C. 98 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.020

Her Majesty the Queen (respondent) v. Mark Eizenga (appellant)

(C49991; 2011 ONCA 113)

Indexed As: R. v. Eizenga (M.)

Ontario Court of Appeal

Weiler, Laskin and Goudge, JJ.A.

February 9, 2011.

Summary:

The accused pled guilty to one count of fraud over $5,000. Following his plea, his counsel advised the court that he and the accused had reviewed the Crown's draft of the facts and were "satisfied that the essence of the count that he's pleaded to will be substantiated by the facts". The draft was consistent with facts that the accused had already admitted to in an agreement he had reached with the Ontario Securities Commission. Although the accused was represented at the time he pled guilty, he was unrepresented at his sentencing hearing 19 months later. At that time, he made submissions challenging a number of the Crown's factual assertions. In response to questions from the trial judge, the accused said he did not believe he was guilty. The trial judge indicated he would not exercise his discretion to strike the plea. He held that "[t]he elements of the offence pleaded to are clearly apparent" and "by anyone's arithmetic" the accused had perpetrated a massive fraud on the investing public and breached the trust of those persons who invested money with him. The trial judge sentenced the accused to eight years' imprisonment and ordered him to pay restitution to the victims of the fraud in the amount of $35,639,395.05. The accused appealed from his conviction, raising, inter alia, the issue of whether the guilty plea was valid. The accused also applied for leave to appeal his sentence. His primary contention was that the restitution order should be quashed because the trial judge did not consider his ability to pay restitution. In addition, he submitted that the order was disproportionate to his involvement in the fraudulent scheme as he transferred $17.6 million to his deceased co-accused. Finally, the accused submitted that the trial judge failed to consider whether, having regard to the accused's sentence of imprisonment, the overall sentence was fit.

The Ontario Court of Appeal dismissed the conviction appeal. The accused failed to convince the court on a balance of probabilities that the guilty plea was invalid and should be set aside. While the accused was not represented by counsel at the sentencing hearing, the hearing was fair. Furthermore, although the accused took issue with certain facts, the facts that were undisputed satisfied every element of the offence of fraud, and his disagreements with how the Crown characterized the facts did not affect his legal liability. With respect to the sentence appeal, the court held that the restitution order was excessive, that it rendered the overall sentence unfit and that it had to be set aside. The court varied the amount of the restitution order to $20 million.

Courts - Topic 589

Judges - Duties - To self-represented party - The Ontario Court of Appeal stated that "The assistance a trial judge is obligated to provide to a self-represented litigant is part of a trial judge's larger duty to ensure that an accused person receives a fair trial. How far a trial judge needs to go in assisting an accused must be determined contextually, having regard to the nature of the charges, the sophistication of the litigant, whether the litigant has expressed a desire for assistance, the stage of the proceedings and the overall circumstances of the case. The overall question to be answered is whether the proceedings were fair" - See paragraph 67.

Criminal Law - Topic 4229

Procedure - Pleas - Guilty plea - Variation of conviction on appeal - [See Criminal Law - Topic 4233 ].

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - The accused pled guilty to one count of fraud over $5,000 - Following his plea, his counsel advised the court that he and the accused had reviewed the Crown's draft of the facts and were "satisfied that the essence of the count that he's pleaded to will be substantiated by the facts" - The draft was consistent with facts that the accused had already admitted to in an agreement he had reached with the Ontario Securities Commission - Although the accused was represented at the time he pled guilty, he was unrepresented at his sentencing hearing 19 months later - At that time, he made submissions challenging a number of the Crown's factual assertions - In response to questions from the trial judge, the accused said he did not believe he was guilty - The trial judge indicated he would not exercise his discretion to strike the plea - The accused appealed from his conviction - The Ontario Court of Appeal dismissed the appeal - The accused failed to convince the court on a balance of probabilities that the guilty plea was invalid and should be set aside - At the time the accused entered his plea, he was represented by experienced counsel and there was a presumption that his plea was valid - That presumption had not been rebutted - The trial judge was correct in finding that the plea was voluntary, unequivocal and informed - The court rejected the accused's submission that the plea was equivocal in that it was conditional on an agreed statement of facts being worked out - The trial judge's decision not to strike the accused's plea was a valid exercise of his discretion, given the history of the proceedings and the fact that the accused never asked to withdraw his guilty plea - While the accused was not represented by counsel at the sentencing hearing, the hearing was fair - Furthermore, although the accused took issue with certain facts, the facts that were undisputed satisfied every element of the offence of fraud, and his disagreements with how the Crown characterized the facts did not affect his legal liability - See paragraphs 1 to 4 and 17 to 90.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - [See Courts - Topic 589 ].

Criminal Law - Topic 4967

Appeals - Indictable offences - Powers of Court of Appeal - Conviction appeal following guilty plea - [See Criminal Law - Topic 4233 ].

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The accused pled guilty to one count of fraud over $5,000 - He had committed a sophisticated breach of trust over an extended period of time that defrauded investors out of $37 million - The trial judge sentenced the accused to eight years' imprisonment and ordered him to pay restitution to the victims of the fraud in the amount of $35,639,395.05 - The accused appealed his sentence - His primary contention was that the restitution order should be quashed because the trial judge did not consider his ability to pay restitution - In addition, he submitted that the order was disproportionate to his involvement in the fraudulent scheme as he transferred $17.6 million to his deceased co-accused - Finally, he submitted that the trial judge failed to consider whether, having regard to the sentence of imprisonment, the overall sentence was fit - The Ontario Court of Appeal agreed with the accused's submissions - Given the trial judge's errors in principle, the court held that the restitution order was excessive, that it rendered the overall sentence unfit and that it must be set aside - The court held that a restitution order was appropriate - However, the court varied the amount of the restitution order to $20 million - That figure reflected the accused's degree of criminal responsibility in a massive fraud that involved a significant breach of trust - The amount also reflected both the funds that the accused transferred offshore whose disposition was unaccounted for and amounts that the accused admitted to taking as "income" - See paragraphs 5 to 7 and 91 to 111.

Criminal Law - Topic 5793

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

Criminal Law - Topic 5795

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

Criminal Law - Topic 5795.1

Punishments (sentence) - Restitution - Appeals (incl. standard of review) - [See Criminal Law - Topic 5792 ].

Criminal Law - Topic 5817.1

Sentencing - Sentencing procedure and rights of the accused - Evidence - Agreed statement of facts - [See Criminal Law - Topic 4233 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations - Offences involving breach of trust - [See Criminal Law - Topic 5792 ].

Criminal Law - Topic 5859

Sentence - Fraud - [See Criminal Law - Topic 5792 ].

Cases Noticed:

R. v. Lucas (1983), 9 C.C.C.(3d) 71 (Ont. C.A.), refd to. [para. 42].

R. v. R.T. (1992), 58 O.A.C. 81; 10 O.R. (3d) 514 (C.A.), refd to. [para. 42].

Adgey v. R., [1975] 2 S.C.R. 426, refd to. [para. 44].

R. v. Corkum (1984), 64 A.R. 354 (C.A.), refd to. [para. 47].

R. v. Eastmond (L.), [2001] O.A.C. Uned. 244 (C.A.), refd to. [para. 51].

R. v. Moser (G.A.), [2002] O.T.C. 119; 163 C.C.C.(3d) 286 (Sup. Ct.), refd to. [para. 51].

R. v. Dallaire (R.), [2001] O.A.C. Uned. 103 (C.A.), refd to. [para. 51].

R. v. Thissen (R.), [1998] O.A.C. Uned. 267 (C.A.), refd to. [para. 51].

R. v. Newman (R.B.) (1993), 61 O.A.C. 267; 12 O.R.(3d) 481 (C.A.), consd. [para. 55].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 55, footnote 3].

R. v. Yarlasky (L.) (2005), 195 O.A.C. 188 (C.A.), dist. [para. 58].

R. v. N.C. (2001), 151 O.A.C. 249 (C.A.), dist. [para. 58].

R. v. Mitchell (A.T.) (1997), 97 O.A.C. 69 (C.A.), dist. [para. 58].

R. v. Lamoureux (1984), 13 C.C.C.(3d) 101 (Que. C.A.), dist. [para. 58].

R. v. Rajaeefard (A.R.) (1996), 87 O.A.C. 356; 27 O.R.(3d) 323 (C.A.), dist. [para. 58].

R. v. Yarlasky (L.) (1999), 126 O.A.C. 331; 140 C.C.C.(3d) 281 (C.A.), dist. [para. 61].

R. v. S.K. (1995), 82 O.A.C. 132; 24 O.R.(3d) 199 (C.A.), refd to. [para. 63].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 64].

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [para. 70].

R. v. Duong (T.) (2006), 228 B.C.A.C. 183; 376 W.A.C. 183; 2006 BCCA 325, refd to. [para. 70].

R. v. Pea (2008), 93 O.R.(3d) 67 (C.A.), refd to. [para. 79].

R. v. Pontes (P.), [1995] 3 S.C.R. 44; 186 N.R. 81; 62 B.C.A.C. 241; 103 W.A.C. 241, refd to. [para. 79].

R. v. Kotch (1990), 114 A.R. 11; 61 C.C.C.(3d) 132 (C.A.), refd to. [para. 79].

R. v. Stucky (D.) (2009), 256 O.A.C. 4; 240 C.C.C.(3d) 141 (C.A.), leave to appeal discontinued [2009] S.C.C.A. No. 186, refd to. [para. 79].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C 161; 79 C.C.C.(3d) 466, refd to. [para. 81].

Kosmopoulos et al. v. Constitution Insurance Co. of Canada et al., [1987] 1 S.C.R. 2; 74 N.R. 360; 21 O.A.C. 4, refd to. [para. 87].

Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 2 O.T.C. 146; 28 O.R.(3d) 423 (Gen. Div.), refd to. [para. 87].

R. v. Guay (J.), [1999] O.T.C. Uned. 814 (Sup. Ct.), refd to. [para. 87].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 91].

R. v. Devgan (R.) (1999), 121 O.A.C. 265; 136 C.C.C.(3d) 238 (C.A.), refd to. [para. 91].

R. v. Kakekagamick (M.R.) (2006), 214 O.A.C. 127; 81 O.R.(3d) 664; 211 C.C.C.(3d) 289 (C.A.), refd to. [para. 92].

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. 93].

R. v. Zelensky, Eaton (T.) Co. and Canada (Attorney General), [1978] 2 S.C.R. 940; 21 N.R. 372, refd to. [para. 97].

R. v. Biegus (J.S.) (1999), 127 O.A.C. 239; 141 C.C.C.(3d) 245 (C.A.), refd to. [para. 104].

R. v. Yates (A.E.) (2002), 174 B.C.A.C. 119; 286 W.A.C. 119; 169 C.C.C.(3d) 506; 2002 BCCA 583, refd to. [para. 104].

R. v. Castro (C.) (2010), 270 O.A.C. 140; 2010 ONCA 718, refd to. [para. 105].

R. v. Fitzgibbon, [1990] 1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81, refd to. [para. 106].

R. v. Wilder (D.M.), [2004] B.C.T.C. 644; 2004 BCSC 644, affd. (2008), 259 B.C.A.C. 236; 436 W.A.C. 236; 2008 BCCA 370, refd to. [para. 107].

R. v. Lawrence (R.E.) et al. - see R. v. Wilder (D.M.).

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 606 [para. 41].

Counsel:

Daniel A. Stein, for the appellant;

Gregory J. Tweney, for the respondent.

This appeal was heard on September 24, 2010, before Weiler, Laskin and Goudge, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and was released on February 9, 2011.

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51 practice notes
  • Table of cases
    • Canada
    • Irwin Books Criminal Law. Eighth edition
    • September 1, 2022
    ...34 R v Efert, 2011 ABCA 134 ......................................................................... 484, 485 R v Eizenga, 2011 ONCA 113, 270 CCC (3d) 168 ...............................................521 R v Ellis-Don Ltd, [1992] 1 SCR 840, 7 OR (3d) 320, 71 CCC (3d) 63 ....... 63, 268 R......
  • Plea Discussions
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...accused the 6 See R v Gardiner (1982), 68 CCC (2d) 477 at 514 (SCC) [ Gardiner ]; R v Parris , 2013 ONCA 515 at para 121; R v Eizenga , 2011 ONCA 113 at para 43 [ Eizenga ]; R v Le , 2013 BCCA 455 at para 18; R v Duong , 2006 BCCA 325 at paras 9–10 [ Duong ]. 7 See R v RP , 2013 ONCA 53 at ......
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...(3d) 193, 1993 CanLII 98 ............................................................................................ 616 R v Eizenga, 2011 ONCA 113 .............................................................. 429, 431, 475 R v EJA (2000), 198 Nfld & PEIR 103, [2000] NJ No 369 (SCTD) ..........
  • The Special Part: Homicide, Sexual, Property, and Terrorism Offences
    • Canada
    • Irwin Books Criminal Law. Eighth edition
    • September 1, 2022
    ...is subjective knowledge of the prohibited act, and that the act could have, as a consequence, the deprivation of another.” R v Eizenga , 2011 ONCA 113 at para 81. C RIMINAL LAW 522 Justice Sopinka agreed with this result but warned that there may not be mens rea in a case where a deprivatio......
  • Request a trial to view additional results
40 cases
  • R. v. Nakamura (Y.) et al., [2012] B.C.T.C. Uned. 327
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    • Supreme Court of British Columbia (Canada)
    • March 2, 2012
    ...specific circumstances of the offence and of the offender. See also R. v. Castro , 2010 ONCA 718, 261 C.C.C. (3d) 304;and R. v. Eizenga , 2011 ONCA 113, 270 C.C.C. (3d) 168 at paras. 105-108. [108] A court's power to make a compensation order as part of the sentencing process is discretiona......
  • R. v. Fones (D.R.), 2012 MBCA 110
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    • Manitoba Court of Appeal (Manitoba)
    • December 13, 2011
    ...W.A.C. 198; 2009 SCC 58, refd to. [para. 33]. R. v. Hunt, [1989] A.J. No. 153 (Prov. Ct.), refd to. [para. 35]. R. v. Eizenga (M.) (2011), 273 O.A.C. 98; 2011 ONCA 113, refd to. [para. R. v. Gasselle (1934), 62 C.C.C. 295 (Sask. C.A.), refd to. [para. 42]. R. v. Schemmer, [1927] 3 W.W.R. 41......
  • R. v. Sunrise Propane Energy Group Inc., 2017 ONSC 6954
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    • Superior Court of Justice of Ontario (Canada)
    • December 27, 2017
    ...v. Pontes, [1995] 3 S.C.R. 44, at paras. 33-34; R. v. Stucky, 2009 ONCA 151, [2009] O.J. No. 600, at paras. 104-118; and R. v. Eizenga, 2011 ONCA 113, [2011] O.J. No. 524, at para. 79. Were Items 1 and 2 Alternative Directions?[108] The trial judge found as a fact that the appellants had fa......
  • R. v. MacFarlane (R.E.), (2014) 421 N.B.R.(2d) 329 (CA)
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    • May 29, 2014
    ...one made with the assistance of counsel, is valid ( R. v. Laffin , 2009 NSCA 19, [2009] N.S.J. No. 66 (QL) at 44; R. v. Eizenga , 2011 ONCA 113, [2011] O.J. No. 524 (QL) at para. 4). Furthermore, because the withdrawal of a guilty plea raises a question of mixed law and fact, leave is requi......
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11 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Criminal Law. Eighth edition
    • September 1, 2022
    ...34 R v Efert, 2011 ABCA 134 ......................................................................... 484, 485 R v Eizenga, 2011 ONCA 113, 270 CCC (3d) 168 ...............................................521 R v Ellis-Don Ltd, [1992] 1 SCR 840, 7 OR (3d) 320, 71 CCC (3d) 63 ....... 63, 268 R......
  • Plea Discussions
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...accused the 6 See R v Gardiner (1982), 68 CCC (2d) 477 at 514 (SCC) [ Gardiner ]; R v Parris , 2013 ONCA 515 at para 121; R v Eizenga , 2011 ONCA 113 at para 43 [ Eizenga ]; R v Le , 2013 BCCA 455 at para 18; R v Duong , 2006 BCCA 325 at paras 9–10 [ Duong ]. 7 See R v RP , 2013 ONCA 53 at ......
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...(3d) 193, 1993 CanLII 98 ............................................................................................ 616 R v Eizenga, 2011 ONCA 113 .............................................................. 429, 431, 475 R v EJA (2000), 198 Nfld & PEIR 103, [2000] NJ No 369 (SCTD) ..........
  • The Special Part: Homicide, Sexual, Property, and Terrorism Offences
    • Canada
    • Irwin Books Criminal Law. Eighth edition
    • September 1, 2022
    ...is subjective knowledge of the prohibited act, and that the act could have, as a consequence, the deprivation of another.” R v Eizenga , 2011 ONCA 113 at para 81. C RIMINAL LAW 522 Justice Sopinka agreed with this result but warned that there may not be mens rea in a case where a deprivatio......
  • Request a trial to view additional results

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