R. v. McCullough (G.B.), 2002 SKCA 124

• Judge: Bayda, C.J.S., Sherstobitoff and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 07, 2002
• Jurisdiction: Saskatchewan
• Citations: 2002 SKCA 124;(2002), 227 Sask.R. 124 (CA)

R. v. McCullough (G.B.) (2002), 227 Sask.R. 124 (CA);

    287 W.A.C. 124

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. NO.010

Her Majesty the Queen (appellant) v. Gerald Bernard McCullough (respondent)

(No. 507; 2002 SKCA 124)

Indexed As: R. v. McCullough (G.B.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Sherstobitoff and Jackson, JJ.A.

November 7, 2002.

Summary:

The accused was charged with two counts of fraud exceeding $5,000 for his conduct respecting a privately administered investment syndicate under the Immigrant Investor Program.

The Saskatchewan Court of Queen's Bench, in a decision reported 216 Sask.R. 61, convicted the accused of both counts.

The Saskatchewan Court of Queen's Bench, in the decision reported 221 Sask.R. 131, sentenced the accused to 21 months' imprisonment. The Crown appealed the sentence, arguing that the sentencing judge erred in declining to order restitution.

The Saskatchewan Court of Appeal allowed the appeal and ordered the accused to make restitution to 34 victims totalling $1,000,000.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The Crown appealed respecting a sentencing judge's refusal to order restitution - The accused also requested that such an order be made but requested that the order contain enforcement provisions entitling him to make orderly periodic payments over an extended period of time according to a formula that would enable him to earn a livelihood and to hold back some funds for investment in projects for the purpose of generating profits earmarked to pay the restitution ordered - The Saskatchewan Court of Appeal stated that it did not have jurisdiction to make an order granting the enforcement provisions requested - The court drew the parties' attention to s. 81 of the Queen's Bench Act, 1998, which provided for a Queen's Bench judge to give directions for the payment of the amount recoverable under a judgment that has been entered - See paragraph 5.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The accused was convicted of two counts of defrauding a privately administered investment syndicate under the Immigrant Investor Program and its immigrant investors of $1,000,000 under an elaborate scheme - Over $500,000 went to agents, lawyers, accountants and others - The balance directly benefited the accused and his company - Collateral damage from fraud resulted in losses of further millions - Breached a position of trust - Took advantage of vulnerable immigrants - No prospect of restitution for victims - The sentencing judge sentenced the accused to 21 months' imprisonment but declined to impose a restitution order - The Crown appealed respecting restitution - The Saskatchewan Court of Appeal held that it was appropriate and fit, given the circumstances of this case, for a restitution order to be made - The court ordered the accused to make restitution to 34 victims totalling $1,000,000.

Criminal Law - Topic 5859

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

Cases Noticed:

R. v. Fitzgibbon (C.D.), [1990] 1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81, refd to. [para. 4].

R. v. Zelensky et al., [1978] 2 S.C.R. 940; 21 N.R. 372; 41 C.C.C.(2d) 97, refd to. [para. 4].

R. v. Scherer (1984), 5 O.A.C. 297; 16 C.C.C.(3d) 30 (C.A.), refd to. [para. 4].

Counsel:

Anthony B. Gerein, for the Crown;

Gerald B. McCullough, on his own behalf.

This appeal was heard before Bayda, C.J.S., Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal, on November 7, 2002. Bayda, C.J.S., delivered the decision for the court on that date and released the following written reasons on November 14, 2002.