Rothery J.T.C.C.: — The Crown appeals the sentence imposed by the Provincial Court Judge on Albert Ethier on the basis that it ought to have included a compensation order. Ethier was convicted of committing the offence of failure to remit air transportation tax, in accordance with section 96 of the Excise Tax Act. The trial judge sentenced Ethier to pay a fine equal to the outstanding tax plus $1,000, and in default of payment, sixty days imprisonment.
The fine of $74,800.05 has been paid. However, the Crown submits that the trial judge erred in law when he refused to allow the Crown to present evidence at sentencing concerning the financial affairs of Ethier. The Crown further argues that had the financial information been entered as evidence, the trial judge would have concluded that a compensation order in the amount of the tax owed would have been appropriate.
The Crown asks that I hear evidence concerning Ethier’s financial situation, and determine whether a compensation order ought to be made. The Crown cites sections 801(3) and 537(g) of the Criminal Code for me to conduct such a hearing. I cannot agree. I am not the summary conviction court trying a case. The Crown is before me because it is entitled to appeal the sentence as permitted by section 813 of the Criminal Code. Therefore, my review of the sentence imposed by the trial judge must be conducted in accordance with the principles of an appellate court.
Section 822 of the Criminal Code states that where an appeal is taken under section 813, sections 683 to 689 (except subsections 683(3) and subsections 686(5)) apply. Sections 687 and 689(2) are of particular importance in this case. Section 687 allows me to consider the fitness of the sentence appealed from and either vary it or dismiss the appeal. Section 689(2) allows the appellate court to annul or vary a compensation order. But, to do so, I must be first convinced the trial judge made an error in law.
The authority for a trial judge to make a compensation order is section
725(1) of the Criminal Code, which states:
A court that convicts or discharges under section 736 an accused of an offence may, on the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence.
The legislation is clear that such an order is discretionary, and it is to be determined by the trial judge. The criteria which a court must consider have been set out in R. v. Zelensky, [1978] 2 S.C.R. 940, [1978] 3 W.W.R. 693. One of the factors includes the means of the offender.
The trial judge concluded that the Crown’s request to produce evidence of financial statements made by Ethier two or three years prior to the offence to be of little relevance. These statements had been made to induce a lender to provide financing to Ethier’s corporate ventures. The trial judge also concluded that juggling of funds, including the air transportation tax, from one corporate entity to another under Ethier’s personal control was indicative of one who had insufficient funds. He also took into consideration that if Ethier were to have the personal assets that the Crown submits he has, the federal government has the resources to pursue him on the basis of a civil judgment. He therefore declined Crown’s request to call evidence and refused to make a compensation order. This is an appropriate use of the trial judge’s discretion. The Crown’s appeal fails.
No order as to costs.
Appeal dismissed.