On April 18, 2019, the appellant, Shaine Robertson, received a sentence of imprisonment for four and a half years and was ordered to pay $15,698.34 in restitution (damage compensation). This sentence was imposed as he had pled guilty to multiple counts of breaking and entering, and the robbery of ten establishments in Cornwall, Ontario while under the influence of drugs. Other charges included dangerous operation of a vehicle, intended disguise, non-compliance with probation orders, and possession of an instrument used for break-ins.
Did the sentencing judge err by failing to consider the appellant’s ability to pay restitution before imposing the order?
The Court referred to R. v. Devgan (1999), 136 C.C.C. (3d) 238 (Ont. C.A.) citing The Queen v. Zelensky,  2 S.C.R. 940 and found that caution should be exercised while restitution orders are made. Since restitution orders are not affected by bankruptcy and remain with the offender for life, courts must consider the offender’s ability to pay, to ensure that imposing such an order does not negatively impact the offender’s rehabilitation process.
At the time of sentencing, the appellant was unemployed, and severely addicted to opiates and cocaine. The highest level of education he has completed is grade 12. The need for addiction treatment, the lack of a higher education, the presence of a criminal record and restitution orders for the said amount, will all impede the appellant’s ability to become a contributing member of society and provide for his daughter. Since the sentencing judge did not take any of the above into consideration, she made an error in legal principle.
The appeal was allowed, and the order to pay restitution was set aside.