R v Burke, 2018 NLCA 31
The Issue
The standard and appropriateness of imposing a restitution order under s738 of the Code.
The Answer
Stand-alone restitution orders are constitutionally valid. They are discretionary and such discretion must take into account an offender’s ability to pay: R v Zelensky, [1978] 2 SCR 940. However, where there is a breach of trust, ability to pay is not a predominant consideration: R v Castro, 2010 ONCA 718.
The Fine Print
In the present case there was a breach of trust. The evidence did not support an inability to pay. The $35,821.85 restitution order was upheld.
DM