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Dustin's Case — Fraud (Welfare) — SentencedBetween [2000] O.J. No. 5975 Ontario
Court of Justice Sentenced: 11 December 2000
¶ 1 CLERK OF THE COURT: Discretionary bench warrant was issued for Mr. A. ¶ 2 THE COURT: Are you Dustin A. ¶ 3 THE ACCUSED: That is right. ¶ 4 THE COURT: Dustin A. appearing, the warrant is rescinded. ¶ 5 MR PENNEY: Thank you, Your Honour. ¶ 6 MR. HODGSON: As Your Honour will recall this is a situation where I believe a guilty plea was entered before you November the 9th of this year. The matter was put over till today's date for sentencing. My friend can correct me if I'm wrong but that's the information I have. I believe just to give you a broad outline, Your Honour, -- ¶ 7 MR. PENNEY: To be fair to my friend the plea was actually entered in May and Mr. A. was in the hospital on November the 9th. That is why there was a discretionary bench warrant. ¶ 8 MR. HODGSON: I see, thank you. This is a case, Your Honour, of welfare fraud. The amount is seven thousand two hundred dollars. It occurred over an eight month period. That is acknowledged by Mr. A. and that's from November, 1997 to July 1998. He was consistently employed by a bakery, I understand, during that period but failed to report that to the welfare authorities. The issue before Your Honour today is what sentence will be appropriate. My friend will be asking Your Honour to consider a conditional discharge. I believe he's provided the court as well as my office with a book of authorities to that effect. ¶ 9 THE COURT: Yes, I received the book, thank you, Mr. Penney. ¶ 10 MR. HODGSON: The Crown will be arguing that a conditional sentence would be a more appropriate sanction. I am providing Your Honour and provided my friend with three cases. If I could pass those up, thank you. ¶ 11 THE COURT: Does he have a record? ¶ 12 MR. HODGSON: Yes, he does Your Honour. ¶ 13 MR. PENNEY: The record was entered on the last day, Your Honour. There is a public mischief from 1985 and a three hundred dollar fine. ¶ 14 MR. HODGSON: Does Your Honour have that? ¶ 15 THE COURT: No. ¶ 16 MR. HODGSON: I believe I do have an extra copy but my friend is correct. ¶ 17 THE COURT: Has it been made an exhibit? ¶ 18 MR. HODGSON: It should be made an exhibit please, if it wasn't before. EXHIBIT NUMBER ONE: Record of the accused, produced and marked. ¶ 19 MR. HODGSON: Your Honour, it goes without saying that during the eight month period that the fraud occurred, Mr. A. obviously had an ongoing obligation to report fully and fairly his financial situation to the welfare department and he failed to do so. And that is typically what happens in these sorts of offences. If I could refer Your Honour to the decision of Justice Weland, the Saskatchewan Provincial Court in the case of R. v. Hughes. It's reported 1998, on the Quick Law data base [1998] S.J. No. 420. And at page three of that decision at paragraph 18 Justice Weland states the issue as follows: "An
issue which gives me
some difficulty is that
this fraud involved repeated
acts of dishonestly and
concealment over a period
of time. That is quite
typical to a welfare
fraud, I suggest. Is
this something that requires
the sanction of a criminal
conviction in order to
ensure that the principles
of general and specific
deterrence are adhered
to." ¶ 20 And that is the question that Your Honour has to decide today. I note in passing that the seminal early decision of the Court of Appeal in R. v. Sanchez-Pino, 11 C.C.C. (2d) 53. In that case it was a shoplifting conviction and the court refused to order a discharge but felt that a conviction more appropriate and one of the reasons for that — this is found at page five of that decision, Your Honour — and it's the fourth full paragraph on that page. The paragraph that begins, "Even these deliberately general observations" does Your Honour have that? They go on to review the circumstances about the offender and the offence. The court states that the appellant: "Was a mature woman of high education
and intellectual attainment. The theft was not the result of a sudden momentary
impulse." ¶ 21 And again, of course, it's my submission and the Crown's submission that that would apply to a welfare fraud that occurs over an eight month period. The Crown does concede that certainly a discharge is available for this sort of offence. It is not precluded by the conditions of the code and my friend's authorities have provided Your Honour with cases where a discharge has indeed been imposed. There is obviously two tests. The first is whether the discharge is in the best interests of the accused. And again, turning to the same R. Sanchez-Pino decision, this time at the bottom of page four, over to the top of page and I think this is a trite proposition but the court states: "The primary purpose of parliament in enacting
that section — that is the discharge section — was to provide
the individual though found guilty of what may loosely be described as a
less serious offence would not have a conviction recorded against him in
all cases. In other words, he would not have a criminal record as the result
of the occurrence." As Your Honour can see from exhibit one, although the conviction is quite dated, this is not a situation of an offender with no criminal antecedents who is coming before the court after a finding of guilt and asking that he or she not be saddled with a burden of a criminal record. Mr. A. has had a criminal record for the past fifteen years. So, it's my submission that while obviously it is in his best interest to receive a discharge, this is not a situation where it is what has been recognized by the Court of Appeal as being the typical case of an accused person arguing that it is in his or her best interest to receive such a sanction. ¶ 22 As far as the second tier of the test is concerned, that is whether or not the discharge would be in the best interest of the public, it is that Crown's submission that welfare frauds are a situation which require the sentencing principle of general deterrence to take paramountcy in the Court's consideration of what sentence is appropriate. And again returning to the R. v. Hughes decision, Your Honour, the Saskatchewan Provincial Court at page three of that case beginning at paragraph eleven, the court states: "The
most important principle of sentencing in a welfare fraud in these circumstances
is general deterrence." And it continues at paragraph fourteen: "the overriding issue
has to do with public interest, that is precisely what general deterrence seeks
to protect. Before granting a discharge a court is required to find that to
do so is not contrary to the public interest." It should be noted in that situation, the accused were asking for a discharge in a welfare fraud case. In that situation the accused did not have a record, unlike Mr. A. and the court decided that due to the nature of the offence a discharge would not be the appropriate disposition. I think again, it's a trite proposition that in these circumstances the normal or the sentence of presumption almost is one of incarceration, whether that's served in the community or in an institution. And for that proposition the Crown relies on the R. v. Hunt decision, decision again of the Saskatchewan Queens Bench, [2000] S.J. No. 161, pg. 2, paragraph 7 of that decision Justice Goldenberg reviews previous decisions for sentencing for welfare frauds and states: "Over
the years our Court of Appeal has clearly indicated that fraudulent activity
in relation to publicly funded programs of assistance will result in a sentence
of incarceration". And then Justice Goldenberg goes on to review cases. It's the Crown's submission that general deterrence and the principle of general deterrence is best provided in these circumstances by a conditional sentence. I think the Supreme Court in their recent R. v. Proulx decision, [2000] 1 S.C.R. 61, has decided that a conditional sentence can provide a means of denunciation and deterrence if Your Honour will allow it. I won't take you to it but at page 7 of the R. v. Hunt decision again Justice Goldenberg reviews the Supreme Court's recent case in that regard and concludes that a conditional sentence can provide significant denunciation and deterrence. It's the Crown's submission that a sentence of four months would be appropriate; that given Mr. A.'s personal circumstances, the Crown would not be opposed to that sentence being made conditional and being served in the community. And I don't think there is any dispute regardless of how Your Honour decides the underling sanction. I think my friend will agree that the period of three years probation with restitution should follow that sentence. I believe my friend will be providing the court with one thousand dollars restitution on today's date which leaves approximately six thousand two hundred outstanding. And I'll let my friend address Your Honour on this point but he has worked out a schedule of repayment which is satisfactory to the Crown. ¶ 23 Just very briefly before I conclude, Your Honour, my friend's book of authorities certainly show you unique cases where discharges have been granted in similar circumstances to the one before. It's the Crown's submission though that a careful review of those cases will show you that in those circumstances the accused is either had no criminal record at all or full restitution has been made prior to the sentencing hearing. My friend relies on the R. v. Shibley case, [1998] O.J. No. 2323, I believe that's at tab four but I could be mistaken. Is that correct, Mr. Penney? ¶ 24 MR. PENNEY: Tab four. ¶ 25 MR. HODGSON: Of the book of authorities, but it's actually discussed in the R. v. Hunt decision at page eight. In the R. v. Hunt decision the court notes and emphasizes that full restitution had been made by both offenders in R. v. Shibley. And that that was really the compelling circumstance which required the court or allowed the court to enter a discharge and in the R. v. Hunt decision that was not done and they refused to follow the R. v. Shibley case due to that fact, and that's found at page eight. Subject to any questions, Your Honour has, those would be the Crown's submissions. ¶ 26 THE COURT: Thank you. Mr. Penney. ¶ 27 MR. PENNEY: Yes, thank you, Your Honour. Before I respond to my friend perhaps I should give Your Honour some further factual background regarding the offender and the offence. Mr. A., Your Honour, is now forty-four years of age. He lives in Port Perry. He lives with his mother who is aged eighty-two. He tells me he spends a lot of his time caring for her. He works seasonally. She is up and about though. I've spoken to her on the phone. She is able but he does assist her around the house in taking care of the every day tasks that we all have to take care of. He works seasonally, Your Honour, on a cruise ship on Georgian Bay. The name of the employer is H*** C***. They generally work from May to October. Right now, he has applied for unemployment insurance. It's not on stream as yet but it will be coming on stream and he tells me he will be able to afford restitution. ¶ 28 First of all, with respect to the thousand dollars, I do have a money order made out in my name which I have received in trust and I'm giving my personal undertaking to my friend to forward that to whatever person and address that he provides to me. There is always some difficulty Your Honour in knowing who to make the cheque out to and where to send it. But I'm giving my personal undertaking. ¶ 29 His income Your Honour I understand is going to be in the range of four hundred dollars a week on unemployment insurance. And he anticipates going back to work in May. If we have a thirty six month period of probation he'll be able to pay restitution back with payments of two fifty per month. And, according to my calculations, that's twenty four payments of two fifty and one of two hundred. And I'm going to ask that Your Honour impose as a term of the probation that restitution of sixty two hundred be paid in full prior to the expiration of the probation order at a rate of not less than two fifty per month commencing February 2001. That provides him ample time inside the thirty six months to pay the restitution in full. And I'm asking that it not commence until February because his unemployment insurance is not on stream as of yet and sometimes there is difficulty with employment insurance applications and getting the money on stream. ¶ 30 He has two adult children, Your Honour, but they are not dependents at this point in his life. If I can now give Your Honour some background with respect to what was going on in November 1997 to the first part of 1998. Mr. A. has given me some of the background. He tells me that at that time he had been a full time single parent of a sixteen year old boy, Joshua, who was very high maintenance. He had attention deficit disorder and he was blind in the right eye and he had some behavioural problems. He informs me that it was a full time job handling and arranging for his care. There were problems with the Separate and Public School Boards. He was at the Hinks Centre at one point and he was constantly in the courts because he was constantly in trouble. He says at the time he was holding down two to three jobs at a time. Then he did get custody of Joshua. Well, he had custody of Joshua throughout this period. He was living in the beaches area at the time in the city of Toronto, although he says he had to move three times in that year because of problems with Joshua. He was diagnosed, Your Honour, in 1982 with HIV and it was around that time, and he had been taking drugs. The cost of the drugs were from sixteen hundred to eighteen hundred per month. Now, the cost of the drugs were being covered by his social assistance. There is a separate plan that covers the drugs but is conditional upon him being eligible for social assistance. So, he wasn't putting out that money. He says he was still having problems with his son and was just staying ahead of matters financially. He says he managed to obtain a part time job to make things easier financially and not have to be dependent on food banks, family and friends. He says he always paid market value rent and he was making nine ninety eight a month from social services but his rent at the time was between eight hundred and eleven hundred per month. He says his main concern at that time Your Honour was maintaining his status with social services to maintain his drug card. At that time he perceived there would really be a struggle for his life. Now, I understand now that the government has changed the rules and there is a plan called the Trillium Plan which he qualifies for and he doesn't have to pay for these drugs; they are paid for by the government. But at the time I think it was conditional upon him being eligible for social assistance. That was the main reason that he wanted to maintain his status with social services. He had specifically asked social services if he could receive the drug card and handle himself financially and they told him it's not possible. Either he's on welfare and he receives the drug card or he's off welfare and he receives nothing. Eventually, Your Honour, he heads back home to Port Perry to live with his mother. His son goes to live with his other son Jeff and he gets back on his feet. He's currently living in Port Perry, as I indicated, caring for him mom, eighty-two years of age. He's been working steadily. He works seasonal work. He holds position of trust on the cruise ship, Your Honour. He's the purser and the on board manager. So, he's somewhat concerned about having a conviction for a crime of dishonesty. ¶ 31 THE COURT: How long has he had the job? ¶ 32 MR. PENNEY: Three seasons, Your Honour. First and foremost, he wants Your Honour to know that he is not very proud of what he's done. He said it was a difficult time for him. He recognizes that it's not an excuse but simply an explanation of what he was going through at the time. ¶ 33 With respect to submissions, Your Honour, there is no magic in the book of authorities that I provided to Your Honour. I've simply compiled these authorities to make it clear that a conditional discharge is a disposition which falls within the acceptable range of sentences for these circumstances. I don't entirely agree with the characterization of some of the cases that my friend — with respect to the cases I've submitted in terms of the facts. I've submitted five cases and my friend indicated that in all of the cases there was restitution. In the first case, the R. v. Hunt case, there was over seven thousand dollars fraud. Ms. Hunt was employed. She didn't report it and the four thousand restitution was prepaid. But that wasn't all the restitution. There was a restitution order for thirty six seventy nine at the end. So, there was partial restitution paid. In the R. v. Xavier case, [1999] O.J. No. 5601 - the R. v. Hunt case was in front of your sister Judge Bonkalo as was the R. v. Xavier case - there was no restitution prepaid, although there was seventy five hours of a community service and that was a welfare fraud in the amount of eighty four hundred and eighty two dollars. Again, in the R. v. Lampty case, [1998] O.J. No. 6401, there was no restitution prepaid. It was an employment related fraud and the fraud was sixty nine hundred and ninety dollars. ¶ 34 THE COURT: Was R. v. Lampty also no record? ¶ 35 MR. PENNEY: R. v. Lampty was no record. The first three were no record. The R. v. Shibley case, Your Honour, is husband and wife. There was restitution paid but it was paid by the father. There is an indication the accused had a record, Mr. Shibley but we don't know what the record was. It's not outlined in the reasons and the restitution was paid by the dad. It would be my submission that an accused person shouldn't receive any different sentence because of unaffordability. If it's a matter of an accused not trying to pay them or making appropriate efforts then certainly that can be taken into account. In the R. v. Trageris case, there was a twelve thousand dollar fraud. It had been put over for substantial period of time as this case was. There was no restitution made. The accused received a ninety day sentence and a conviction for an assault in the interim between the day of the plea and sentencing. He received a conditional discharge along with an order for community service of three hundred and forty hours. I don't take issue with my friend's position. I think we're sort of joint in that regard that the range of appropriate sentence is anywhere from a conditional discharge right on up to custody depending upon how Your Honour views all the circumstances. It would be my submission that Your Honour should consider having Mr. A. give something back to the community and the community interests might better be served by him doing a large amount of community service for which he does have time. He's living in Port Perry. The probation officer up there can find something for him to do. He cares for his mom but he tells me she is not unhealthy. She is not bedridden or anything so he does have a substantial amount of time. He would be prepared to give something back to the community for what he's done. And I'm suggesting a range of community service hours, anywhere Your Honour between seventy five and a hundred and fifty hours. He will have lots of time before May to complete those hours. I'm simply suggesting between seventy five and a hundred and fifty hours to be completed within the first twelve months. ¶ 36 With respect to restitution, Your Honour, he would have liked, of course, to have paid the full amount of the restitution. I can indicate — although I'm not in the habit of sort of disclosing details with respect to — by having the matter put over and attempting to make restitution, he was disqualified for legal aid and then also had to pay me for retainer. So, some of his funds had to be committed for that purpose. He put aside as much money as he could. He has a thousand dollars now to pay towards the restitution, leaving sixty two hundred. I ask Your Honour to judge his promise that he will pay this, not by simply with the good intention but also to take into account, one: that he has paid a thousand dollars, 2) that he is asking Your Honour not simply to make a free standing restitution order which may not be acted upon as a civil judgment but he sat down with me this morning and has worked out a payment schedule that he says he can meet without any difficulty at all and he'll have the cooperation of the probation officer. In fact, he's the one that asked —it's not my friend that was asking for the two fifty a month. He says he's not that great of a financial planner, and would prefer to have a monthly payment plan. And he's confident that it can be made. The income is there. It's going to be there from unemployment insurance, and it will be there when he returns to work in May at the rate of two fifty a month commencing in February. ¶ 37 The record, Your Honour, is obviously an aggravating factor. It always is. Although I would submit to Your Honour that it is not determinative of what should be done. The record is one thing that may be taken into account when Your Honour is considering whether to grant a discharge or not. I don't think I can do any better than repeat what Mr. Enright said on the day of the plea that the record is so old and so unrelated that it's practically no record for the purpose of the present proceedings. And subject to any questions Your Honour might have those would be my submissions on behalf of Mr. A.. ¶ 38 THE COURT: Thank you, Mr. A. is there something you would like to say to the court, sir? ¶ 39 THE ACCUSED: No. ¶ 40 THE COURT: You don't have any information that Mr. A. will lose his job if he gets another conviction do you? ¶ 41 MR. PENNEY: No, no, I'm not in a position to assert that, Your Honour. ¶ 42 THE COURT: Okay, now, Mr. A., when you are not employed and you're on UIC I guess that's about half the year, are you sure that you can make these payments? ¶ 43 THE ACCUSED: Yes. ¶ 44 THE COURT: Because when you put it in as a term of your probation and you don't make the payment you could potentially be in breach of probation and therefore subject to a criminal charge, do you understand that? ¶ 45 THE ACCUSED: Yes. ¶ 46 THE COURT: So, you believe that you will keep your job and be able to make these payments and that you also believe that you will be able to qualify for unemployment insurance and still make the payments. ¶ 47 THE ACCUSED: Yes. ¶ 48 THE COURT: At least for the foreseeable future. ¶ 49 MR. PENNEY: Well, if Your Honour wants to —just thinking out loud in terms of addressing Your Honour's concern — Your Honour can always add the phrase, "it's to be made prior to the expiration of the probation and the payments of two-fifty per month are to be made while employed or while receiving income from employment insurance". So, for some reason he becomes unemployed, if he doesn't get his job back in May and he has to revert back to welfare we don't run into a problem. ¶ 50 MR. HODGSON: I have no difficulties with that. ¶ 51 THE COURT: Mr. Penney did you find anyone other than Judge Bonkalo who granted conditional discharges for these frauds? ¶ 52 MR. PENNEY: Well -- ¶ 53 THE COURT: Oh, I mean you have Judge Ormston in the last one. ¶ 54 MR. PENNEY: Judge Ormston. This is what I could find in terms of discharges and I know of these cases, I was sitting in court one day on the R. v. Xavior case and I just simply ordered that transcript because I happened to be there. And the other two, Ms. Kaufman is a colleague of mine as is Mr. Moore, and that's why I ordered those transcripts and I knew of the R. v. Trajeros case because I was in the office with Mr. Heller at one point. I did a search on Quick Law and this is what I came up with. The R. v. Shibley case is the only case I could find in terms of — ¶ 55 THE COURT: What was the distinction the court made between the husband and the wife in R. v. Shibley? ¶ 56 MR. PENNEY: My understanding is that it's the husband that was the one that was working. I think it's two distinctions: 1) the husband has a record although we don't know what it is; 2) the husband was the one that was working although the wife was found guilty of the fraud because they jointly signed the statutory declarations and they jointly applied for their welfare and they jointly received it and spent the funds. The other reason that she received a discharge was that she had become a registered nurse and there was some concern — I'll just find the paragraph, Your Honour. Page four, paragraph thirty three. Yes, page three and four. So, there was some concern that it might be jeopardized and in Mr. A.'s situation, I mean, he's not required by the terms of his employment to disclose that he's been found guilty and he doesn't intend to disclose it. But if it's found out, it may very well jeopardize. It certainly will affect his standing within his employer's eyes given the position of trust that he maintains on the ship. ¶ 57 THE COURT: Are you saying it will affect his position, his job or not? ¶ 58 MR. PENNEY: Well, I'm not in a position to assert that it will for certain. What I indicated was that he's not about to disclose it voluntarily to his employer because he's not required to. But if it did come out that he was even found guilty or if there is a conviction and then I would submit that it's not unreasonable that the employer would consider that aggravating in the employer's eyes and it might very well affect his standing with the employer given the position of trust that he maintains on the boat. ¶ 59 I would submit, Your Honour, with respect to the R. v. Shibley case that essentially there was nothing more before the Honourable Justice than that submission that it might jeopardize her career. There is nothing in the record to indicate that there was anything specific put before the Justice to indicate that the career would go off the rails. And I think that's because many of these professional organizations will have a hearing to determine what should happen and we really don't know what's going to happen until the hearing has been held. ¶ 60 THE COURT: Mr. A., you've had no problem getting your drugs now? ¶ 61 THE ACCUSED: No, there is no problem. From the laboratory, clinical trials. ¶ 62 THE COURT: I see. And your health is fine? ¶ 63 THE ACCUSED: It's up and down. ¶ 64 THE COURT: Because a problem with putting you on such a strict probation in terms of payment I just have some concerns with your health and what have you. Given that you work half the year in addition that you will be able to make these payments and repay all the restitution. I know you have every intention as you're expressing it in court today but I just really wonder if it's going to be possible. Because in some ways to be in breach of probation you might end up being in jail for a breach of probation whereas what the Crown is suggesting is a conditional sentence and where you don't have to go to jail and normally with that on a welfare fraud it's a restitution order. So, it's not as onerous on you. And if you didn't think you were going to lose your job I would think that that would be preferable. ¶ 65 MR. PENNEY: May I make a suggestion, Your Honour? ¶ 66 THE COURT: Yes. ¶ 67 MR. PENNEY: My initial submission was that the order should read the entire amount, the restitution is to be paid prior to the expiration of probation. I know that causes a problem sometimes when the thirty six months are up and someone hasn't paid the amount and they're facing this huge and they are also facing a breach. If Your Honour is concerned that he might be unemployed at some point and not receiving income and that may very well happen and then we could loosen the condition a little bit and simply indicate that we'll have a free standing restitution order, that would be a civil judgment, but in addition Your Honour could impose a probation term that he make payments - ¶ 68 THE COURT: I think normally on these kinds of frauds you get a conditional sentence and a restitution order. If you're going to get a discharge you're going to make restitution in advance, generally and, as in Judge Bonkalo's situation, it would be faultless in character. I consider this s. 85 mischief to virtually qualify in that realm but I just want to make sure Mr. A. understands what the problem he could face if he gets what he wants, what he's asking the court to consider as opposed to what the Crown is suggesting. ¶ 69 MR. PENNEY: I can indicate on his behalf, |
