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.
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