Dustin's Case — Fraud (Welfare) — Sentenced

Client:  Dustin A., Accused
Complainant:  Toronto Police Service — Fraud Squad
Charge:  fraud over $5000, Criminal Code, s. 380(1)(a)

Background:  1997 and 1998 were not good years for Dustin. He was battling aids, and the drugs were expensive. He was on welfare, and just surviving. His rent alone ate up the lion's share of his monthly allowance. On top of that, he had a special-needs child that was causing a variety of headaches. He was barely surviving, and he felt he was at his rope's end. Then he got a chance to get his head above water by earning a little income on the side. At the time, he was on some expensive drugs that were paid for by the government. If his welfare was cancelled, he would lose his drug plan. He made a decision that he's not proud of. But he saw it as a decision to survive — a chance to survive now and to explain later. Well, the "later" had arrived. The welfare authorities found out about his deceit. Dustin was charged with fraud over $5000.

READ THE POLICE REPORT

Goals:  Dustin had three goals:  first, he wanted to pay back the money; secondly, he wanted to accept responsibility for his actions by pleading guilty; and, thirdly, he wanted me to minimize the consequences.

Strategy:  One problem I faced was that, at the time, there were many similar cases where the accused person went to jail. That result I wanted to avoid. I also wanted to avoid a conviction. That was a taller order, but one which I felt was possible. At the time, I was aware of a few cases where the presiding Justice had granted a conditional discharge on sentence in welfare fraud matters. So, I set my sights on obtaining a conditional discharge. (The advantage of a conditional discharge is that it is automatically erased after 36 months on C.P.I.C. — the R.C.M.P.'s nationally-maintained criminal record database.) Making this task even more difficult was Dustin's criminal record. He had an unrelated conviction from 1985. But I had nothing to lose by asking for the moon, and I deeply felt that Dustin's personal circumstances warranted treating him differently from a person who had committed an act of unbridled dishonestly. He was guilty, yes, but there were extenuating circumstances.

Results:  The Court transcript linked below contains everything the Crown and I had to say to the Judge about the appropriate sentence. But it is, of course, the Judge who has the final say on sentencing. Taking everything into account, Her Honour agreed that convicting Dustin was not necessary. Her Honour granted Dustin a conditional discharge with a payment plan that allowed him to pay back the money in full. That record was erased on 11 December 2003.

READ THE SUBMISSIONS AND THE JUDGE'S RULING