Background
Between March 2019 and February 2023, Deborah Oguntoyinbo pleaded guilty to 23 charges arising from seven separate informations. Sixteen charges were fraud and property-related offences spanning six distinct schemes: two motor-vehicle purchase frauds using false identification and fraudulent negotiable instruments (valued at $27,500 and $25,000 respectively), two apartment rental scams (one targeting a vulnerable refugee family for $400, another for $3,000), and two fraudulent obtainments of cosmetic procedures from small businesses (totalling roughly $12,000). The remaining seven convictions were for breaching probation and judicial-release conditions imposed to prevent further offending. Oguntoyinbo had an extensive record of dishonesty offences dating back to 2014.
The Ontario Court of Justice sentenced her to a global five years’ imprisonment (after a one-year totality reduction from a gross six-year cumulative term), minus 130 days of presentence custody credit. The sentencing judge also ordered restitution totalling $88,795 to eight victims and imposed $3,700 in victim surcharges. Oguntoyinbo sought leave to appeal, arguing errors of principle in the incarceration term, the restitution orders, and the victim surcharges.
The Court’s Holding
The Court of Appeal (Paciocco J.A., Miller and Wilson JJ.A. concurring) granted leave and allowed the appeal in part. The court found a material error of principle: the sentencing judge had included in his sentencing exercise a charge — failing to appear contrary to s. 145(2)(b) of the Criminal Code — that the Crown had withdrawn before any conviction was registered. Sentencing an accused for an offence of which she was never convicted is a fundamental error. Because this erroneously included count had been made consecutive at step (2) of the R. v. Bertrand Marchand analysis and thereby inflated the gross cumulative sentence from which the totality reduction was calculated, it materially affected the final term imposed. That error removed any deference owed to the sentence below.
The court declined to find a separate error of principle in the sentencing judge’s use of equal 12-month groupings for the fraud counts rather than the Bertrand Marchand bottom-up approach, holding that an alternative, long-established method endorsed in R. v. Jewell — identifying an appropriate total sentence and then fitting individual counts to that total — remains valid and is particularly practical in busy courts handling multiple pleas. After vacating the improper count and reassessing the remaining counts, the court substituted a global sentence of three-and-a-half years’ imprisonment, minus the same 130-day presentence credit, finding this proportionate, parity-consistent, and adequate to meet the primary sentencing objectives of denunciation and deterrence while reflecting the guilty pleas, expressed remorse, and the unsophisticated, smaller-scale nature of the frauds compared to cases warranting a full five-year penitentiary term.
On restitution, the court vacated the orders in favour of two victims (Gary Kaleas, $25,000, and Robert Orgovan, $16,000) on consent, as both had fully recovered their losses — one even making a $2,000 profit on resale — meaning the statutory cap under s. 738(1)(a) of the Criminal Code was not met. The court also found that the sentencing judge erred by acknowledging Oguntoyinbo’s inability to pay the remaining orders without explaining why that inability was irrelevant, contrary to R. v. Biegus. Rather than vacating the remaining six orders, however, the court varied them to allow payment within ten years from the date of sentencing, given Oguntoyinbo’s period of incarceration, existing restitution obligations, and her expressed desire to repay victims. The $100 victim surcharge tied to the vacated count was also set aside; the remaining $3,600 in surcharges was undisturbed, as no reviewable error by the sentencing judge was identified.
Key Takeaways
- A sentencing judge commits a material error of principle — warranting appellate intervention — by including a withdrawn (unconvicted) charge in the sentencing exercise, even where the resulting individual sentence is later made concurrent at the totality step, because its inclusion inflates the gross cumulative sentence from which any reduction is calculated.
- Both the Bertrand Marchand bottom-up approach and the older Jewell top-down approach (identify a fit total, then assign individual sentences to reach it) are valid in Ontario; using equal sentence groupings to achieve an appropriate global total is not, without more, an error of principle.
- A restitution order cannot exceed the victim’s actual loss under s. 738(1)(a) of the Criminal Code; where a victim has fully recovered their loss (including through profitable resale), the order must be vacated.
- Acknowledging an offender’s inability to pay restitution without explaining why that inability is ultimately irrelevant is a reviewable error, though the remedy may be a generous time-to-pay variation rather than outright vacating the order.
- Five-year penitentiary sentences generally correspond to sophisticated, large-scale frauds often involving breach of trust; unsophisticated, smaller-scale serial frauds — even committed by recidivists in breach of court orders — more typically attract reformatory or shorter penitentiary sentences.
Why It Matters
This decision reinforces a foundational principle of Canadian criminal law: a court’s jurisdiction to sentence is strictly bounded by the offences of which the accused stands convicted. Where a procedural misstep — such as sentencing on a withdrawn charge — infects the arithmetic underlying a global sentence, appellate courts will not simply apply a notional correction; they will recalculate from the ground up, with full freedom to depart from the original term. Defence counsel and Crown prosecutors alike should verify at the sentencing hearing that every count being considered for sentence corresponds to an actual conviction on the record.
The decision also provides useful practical guidance on sentencing methodology. By expressly affirming that the Jewell top-down approach remains available alongside the Bertrand Marchand framework, the court acknowledges the realities of busy provincial courts handling bulk guilty pleas, while insisting that whichever method is used must be grounded in a genuine, individualized assessment of proportionality. The restitution analysis, particularly the court’s willingness to grant a ten-year payment window as a middle ground between vacating and enforcing an order against an impecunious offender, illustrates how appellate courts can fashion equitable relief that serves both victim compensation and offender rehabilitation interests.