R. v. Malicia, 2017 ONSC 6243

CITATION : Business Development Bank of Canada v. Cavalon Inc., 2017 ONSC 6243 COURT FILE NO.: 2454/14 DATE: 2017-10-18 SUPERIOR COURT OF JUSTICE - ONTARIO RE: BUSINESS DEVELOPMENT BANK OF CANADA, Applicant AND: CAVALON INC., 2365222 ONTARIO LIMITED, AUTOMETRIC AUTOBODY INC., 2145009 ONTARIO INC. and ROBERT FRANCIS BORTOLON also known as ROBERT BORTOLON, Respondents BEFORE: Gray J. COUNSEL: Ben Frydenberg. Counsel for the Applicant Doug LaFramboise, Counsel for Robert Bortolon A.J.

Esterbauer and Sydney Hodge, Counsel for Robyrt Regan HEARD: In chambers ENDORSEMENT [ 1 ] Further to my endorsement of yesterday’s date, I have now received submissions from Mr. LaFramboise on the issue of whether I am functus officio . Mr. LaFramboise has requested that I order that Mr. Bortolon’s sentence of imprisonment, now fixed at 45 days by the Court of Appeal, be served intermittently on weekends. [ 2 ] Mr. LaFramboise submits that in criminal cases the court can incorporate a more flexible approach to the doctrine of functus officio .

Furthermore, he submits that he is not asking that the sentence I imposed (that was varied by the Court of Appeal) should be changed. Rather, he is simply asking that it be served in a different way than I had originally ordered. He submits that Mr. Bortolon was not given the opportunity to provide fulsome submissions with respect to his health, age, and medical and personal situation on the day the sentence was imposed. Thus, it would be appropriate to now consider these matters and order that Mr. Bortolon be permitted to serve his sentence on weekends. [ 3 ] Mr. LaFramboise particularly relies on R. v.

Malicia (2006), 87 O.R. (3d) 772 (C.A.) . [ 4 ] In my view, I am functus officio and have no jurisdiction to vary the sentence that I imposed, and that has itself been varied by the Court of Appeal. [ 5 ] This is not a case like Malicia , in which the Court of Appeal found that the trial judge had always intended to impose the sentence that she ultimately decided was appropriate.

At no time was it suggested here that an intermittent sentence should be considered, and it cannot be said that I am being requested to adjust the sentence so that it comports with what I originally intended. [ 6 ] I do not agree that Mr. Bortolon did not have an opportunity to make submissions on whether an intermittent sentence should be imposed. I heard full submissions on whether a custodial or non-custodial sentence should be imposed, assuming a finding of contempt was to be made, on the day the matter was argued. It would have been open to Mr.

Bortolon to argue that an intermittent sentence would be appropriate had he chosen to do so. Furthermore, the sentence itself was the subject of an appeal to the Court of Appeal, and it would have been open to Mr. Bortolon to argue for an intermittent sentence before that court. [ 7 ] At this point, it can only be concluded that the sentencing issue has been fully considered and determined. I am now functus officio , and have no jurisdiction to entertain Mr. LaFramboise’s request. Gray J. Date: October 18, 2017