R. v. M.F.G., 2019 BCPC 186

Citation: R. v. M.F.G. 2019 BCPC 186 Date: 20190813 File No: 24995-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.F.G. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Reed, A. Counsel for the Defendant: Locke, L. QC and Beggs, E. Place of Hearing: Smithers , B.C. Date of Hearing: July 23, 2019 and August 9, 2019 Date of Judgment: August 13, 2019 Introduction

[ 1 ] M.F.G. is before the Court for sentencing having pled guilty on September 27, 2018, to the sole count on Information 24995-1 charging her with welfare fraud. Count 1 reads as follows: M.F.G., from the 17 th day of September 2012 to the 31 st day of July, 2015, inclusive, at or near [omitted for publication], in the Province of British Columbia, did by deceit, falsehood, or other fraudulent means, defraud Her Majesty in the Right of the Province of British Columbia of money, in excess of $5,000, contrary to s. 380(1) (

a) of the Criminal Code . [ 2 ] Ms. G. admits she knowingly and intentionally failed to disclose income she received from the [omitted for publication] Society and [omitted for publication] Band from September 17, 2012, to July 31, 2015. Circumstances of the Offence [ 3 ] On November 17, 2009, Ms. G. initiated an application process for income assistance. At that time she was living in [omitted for publication], BC.

She was a single parent to three children whose fathers contributed little if anything to the support and wellbeing of their offspring. [ 4 ] On many occasions employment assistance workers in what is now the Ministry of Social Development and Poverty Reduction (the “Ministry”) impressed upon Ms. G. her obligation to report all of her employment income. [ 5 ] On June 22, 2015, the Ministry received a report Ms. G. was earning Employment Insurance. At their request, Ms.

G. provided the Ministry income assistance workers with a Record of Employment indicating she had worked as a [omitted for publication] and casual receptionist for the [omitted for publication] Society from September 17, 2012, to November 18, 2015. [ 6 ] James Fair, a Ministry Investigator, initiated an investigation of Ms. G. for welfare fraud. He obtained numerous production orders for Ms. G.’s employment and banking records. The Ministry learned Ms. G. had an account with the Royal Bank of Canada she had not disclosed to the income assistance workers. Ms.

G.’s records indicated she received regular deposits for employment income from the [omitted for publication] Society and the [omitted for publication] Band. [ 7 ] Ms. G. claimed and collected income assistance from November 17, 2012, to July 31, 2015, a period of 32.5 months. In all but two of those months Ms. G. received employment income. For each of those months Ms. G. reported to the Ministry she had no income. As a result of this fraudulent reporting, Ms. G. received payments totalling $30,968.12 to which she was not entitled.

Issue [ 8 ] The issue for the Court is to determine a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender, M.F.G. [ 9 ] The matter came for hearing before me in Smithers Provincial Court on July 23, 2019, and August 9, 2019. I received into evidence the following four exhibits: Exhibit 1: a Gladue Report for M.G. prepared by Kimberly Gee filed on April 17, 2019. Attached to this report are character references from: a.

C.W., Executive Director of the [omitted for publication] Society; b. Jacqueline Cosman, a dental therapist with the First Nation Health Authority and Ms. G.’s supervisor with the [omitted for publication]; c. Judi Calhoun, of Juniper7 Contracting (Childbirth Educator, Lactation Counsellor, Doula); d. Bev Busby, a family friend and Employment Counsellor for the Upper Skeena Development Centre; e. Melanie Angus, employee of the Bulkley Valley Child Development Centre and community member; f. Julie Morrison, an employee of the First Nation Health Authority who supervised [omitted for publication] when Ms.

G. was employed as the [omitted for publication]; Exhibit 2: Ministry’s Overpayment Chart from October 2012 to August 2015, showing (

a) the source of Ms. G.’s income; (

b) her actual employment income; (

c) her declared income; (

d) her assistance eligibility; (

e) the amount of assistance she received; and (

f) the overpayment; Exhibit 3: James Fair’s Application for a Stand Alone Restitution Order; and Exhibit 4: A letter dated May 14, 2019, from Pamela Torres of the [omitted for publication] School Program “To Whom it May Concern” regarding M.G. [ 10 ] I heard submissions of both Crown and Defence counsel and received their legal authorities. I also heard from Ms. G. and Pamela Torres. At the conclusion of the hearing on August 9, 2019, I reserved my decision. These are my reasons for sentence. Circumstances of the Offender [ 11 ] Ms. G. is 35 years old and a member of the [omitted for publication] First Nations.

She resides in [omitted for publication], BC, with four of her five children and her current partner, W.T. Mr. T. is also a member of the [omitted for publication] First Nations. [ 12 ] Ms. G. has five children, the oldest, T.L.B.G., is now 20 years old lives independent of her mother. Ms. G. was 14 years old

when T.L.B.G. was born. At her grandmother’s insistence, T.L.B.G. lived with an aunt for the first six months of her life. Ms. G.’s fouryoungest children, T.K.H., age 16, T.V.H., age 13, L.I.S., age 8, and E.J.T., age 2, reside with Ms. G. and Mr. T. [13] Ms. G. received little if any support from any of her children’s fathers. The three fathers of Ms. G.’s four older children abuseddrugs and alcohol; they were violent and physically abused her, one was murdered, and one suffered from mental illness. Mr. T.,Ms.

G.’s current partner and the father of E.J.T., recently completed training as a heavy duty mechanic, but remains unemployed. [14] On November 17, 2009, Ms. G. initiated an application process for income assistance. At that time she was living in [omittedfor publication], BC with her three oldest children, T.L.B.G., who was then 11 years old, T.K.H., then six, and T.V.H., then five. [15] Ms. G.’s mother is a member of the [omitted for publication] First Nations; her father was [omitted for publication]. Ms.

G.’spaternal great grand-mother, R.P. attended [omitted for publication] School in Lytton BC and struggled with alcoholism. Ms. G.’smaternal grandmother, R.N.G., attended [omitted for publication] School; she too suffered and died from alcoholism. [16] Ms. G. was “hugely connected” with her maternal grandfather, M.H., who cared for Ms. G. much of her young life. Mr. M. wasnot indigenous and had been in the army and a veterinarian. Ms. G. stated she “felt safe with him, he loved me, cared for me, and neverhurt me.” In the Gladue Report (Exhibit 1) the author, Kimberly Gee states on page 5: [Ms.

G.’s] childhood was shaped by her mother’s frequent absences, verbal and physical abuse and relocations of the family, and by hermother’s struggles with substance abuse. [Ms. G.’s] father committed suicide when [Ms. G.] was 2 years old. [17] Ms. G.’s mother was physically abusive and drank to excess. There is evidence her mother drank consistently during herpregnancy. Ms. G. has never been tested for Fetal Alcohol Spectrum Disorder, but believes it may attribute to her bad memory anddifficulty problem solving. The fact Ms.

G. only made it to Grade 10 may be a result of her mother’s alcohol consumption whilepregnant. Ms. G. suffers from depression and anxiety. Her sons T.L.B.G. (age 16) and T.V.H. (age 13) also suffer from significantlearning disabilities. [18] All of Ms. G.’s children are status members of the [omitted for publication] First Nations. Ms. G. says that although she haslived in the [omitted for publication] territory all her life, she feels disconnected from her family and her indigenous community throughneglect, physical abuse, and exposure to substance abuse. Many members of Ms.

G.’s extended family on whom she relied for supporthave died, including her grandparents, aunts, uncles, and cousins. [19] Ms. G. resides off reserve in [omitted for publication], BC, she works full-time for [omitted for publication]. She earns $18 perhour or $1200 biweekly. Ms. G. rents a five bedroom house on [omitted for publication], BC and is the sole supporter of her family. Theevidence indicates Ms. G. is fully committed to her children’s happiness and well-being. [20] Ms. G. did not mention any other sources of income other than her employment with the [omitted for publication].

I wouldassume she would at least receive the Universal Child Care Benefits for the four youngest children. [21] Ms. G. admits her guilt to the offence. She was terrified when the Ministry commenced its investigation and cooperated fullywith Mr. Fair from the outset. Ms. G.’s family and community know of her crime. She feels very ashamed and wants to expiate herwrong doing, including paying restitution. Criminal Record [22] Ms. G. has no prior criminal record. Victim Impact [23] The Crown has not tendered a Victim Impact Statement. Nevertheless, the Court recognizes that welfare fraud is not avictimless crime.

It deprives society of scarce resources and increases the burden on honest taxpayers: R. v. Chicoyne, 2011 ONSC 2624, para. 35. In R. v. Baldini, 2010 BCPC 254 , Judge R.R. Smith states: [62] Taxpayers fund disability social assistance. This is not a victimless crime. The Ministry, on behalf of the tax payers, wasdeprived of an economic interest in having the assistance funds distributed fairly and according to law.

The Positions of the Parties [24] The Crown submits the appropriate sentence is a suspended sentence and two years’ probation with both rehabilitative andpunitive conditions, together with a stand alone restitution order in the amount of $30,968.12. The punitive terms include 30 hours ofcommunity service work and a provision Ms. G. be under house arrest for the first 12 months of the probation order. [25] Defence counsel submits that but for the 14 year maximum sentence for a s. 380(1)(

a) offence, Ms. G. would have been entitledto a conditional discharge. Ms. G. asks the Court for leniency with respect to the duration and severity of the probation and the amount ofrestitution she is required to pay. [26] The Crown and the defence have not made a joint submission as to sentence, therefore the principles espoused in R. v. Anthony-Cook, 2016 SCC 43 are not engaged. Legislative Framework and Authorities [27] The relevant provisions of the Criminal Code are as follows: Fraud

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of thisAct, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of theoffence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; Restitution to victims of offences 738

(1) Where an offender is convicted or discharged under

section 730 of an offence, the court imposing sentence on or discharging theoffender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender,order that the offender make restitution to another person as follows: (

a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence . . . Ability to pay 739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under

section 738 or 739. Purpose and principles of sentencing [28]

Section 718 of the Criminal Code, sets out the fundamental purpose of sentencing, which is to contribute, along with crimeprevention initiatives, respect for the law and the maintenance of a just, peaceful, and safe society, by imposing just sanctions, to haveone or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender;(

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [29]

Section 718 codifies the common law principles of sentencing: R. v. Nasogaluak, 2010 SCC 6 , at para. 39. [30]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R. v.Lacasse, 2015 SCC 64 , at para. 130. [31] In R v Ipeelee, 2016 SCC 14 , LeBel, J., states in para. 37, in part: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality.

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem. . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [32] Other important sentencing considerations are set out in

section 718.2, which states a sentence should be increased or reduced toaccount for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [33]

Section 718.2(

b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparitybetween sanctions for different offenders needs to be justified.” [34] Sections 718.2(

d) and 718.2(

e) codify the restraint principle which holds an offender should not be deprived of liberty if lessrestrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of aboriginal offenders: s. 718.2(e). Sentencing Indigenous Offenders [35] R. v. Gladue, (SCC), and R. v. Ipeelee, 2012 SCC 13, are the leading cases with respect to how s. 718.2(e)should be applied, and the framework for sentencing indigenous offenders. The judge has a statutory duty imposed by s. 718.2(

e) toconsider the unique systemic and background factors which may have played a

part in bringing the particular offender before the Courtand the types of sentencing procedures and sanctions that may be appropriate because of the offender’s particular indigenous heritage.The offender is not required to establish a causal link between background factors and the commission of the offence before beingentitled to have those factors considered by the sentence judge. Judges may take judicial notice of the broad systemic and backgroundfactors affecting indigenous people generally and case-specific information from the offender and the presentence reports. [36] Ms.

G. is a member of the [omitted for publication] First Nations and therefore the principles relating to sentencing indigenousoffenders as set out in s. 718.2 apply. Authorities [37] Sentencing is a highly individualized process: Ipeelee, at para. 38. In R. v. Knott, 2012 SCC 42 , the Supreme Courtheld that "the purpose and principles of sentencing set out in the Criminal Code are meant to take into account the correctionalimperative of sentence individualization."

[38] Both the Crown and Defence have provided case law in support of their respective positions on sentence. The Crown hasprovided R. v. Dennis, 2013 BCCA 153 , R. v. Keuris, 2008 BCSC 480 , The Defence has provided R. v. Collins, 2011ONCA 182 and R. v. Isaac, 2009 SKPC 111. Relevant Principles of Sentence [39] The primary sentencing principles in welfare fraud cases are denunciation and general deterrence: In Keuris, at para. 26, JusticeBarrows states: [26] What I distil from the authorities noted is that general deterrence is perhaps the most significant factor in fashioning a sentence incases of this kind.

The welfare system exists to benefit those in need. It is a system that deals with a great number of people. To manageit within an environment of scarce resources, it depends on the honesty of those who access it. As Judge Rounthwaite noted in R. v.

Lim,[2005] B.C.J. 1359 (P.C.): When people take scarce social assistance funds dishonestly they steal from taxpayers, they reduce funds available for those in genuineneed, and they necessitate the expenditure of funds on investigation. [40] In Keuris, the 36 year old offender was given a six month conditional sentence order after a guilty plea to welfare fraud in theamount of $25,000. Ms. Keuris had no criminal record and four children, albeit not continuously in her custody.

Justice Barrowcommented at para. 11: [11] Finally, I should note that although the amount of the fraud is not insubstantial, there is no evidence to suggest it was used to fund alavish lifestyle or support an alcohol or drug addiction. Ms. Keuris, when she had the care of her children, was not receiving support fromtheir fathers. That, coupled with her common-law husband's intermittent and modest income, left the family unit in relativelyimpoverished circumstances. [41] Justice Barrows cited R. v.

Friesen, (BC CA), a case wherein the 43 year old offender pled guilty to welfarefraud in the amount of $12,000 perpetrated over a five-year period by failing to report her income. Ms. Friesen was sentenced to ninemonths' imprisonment, which was upheld on appeal. Mr. Justice Taylor discussed the importance of a deterrent sentence in welfare fraudcases at para. 11: [11] The case is one in which deterrence of others who may be like minded has, unfortunately, to be emphasized, in priority to otherconsiderations.

Not only is welfare fraud a matter of growing public concern, but it has to be regarded as a form of crime in respect ofwhich there is a real chance that substantial penal consequences will deter, and one also in respect of which knowledge that repeated, andoutrageous, dishonesty, such as that practiced by the appellant, goes lightly punished inevitably serves as a stimulus to similar dishonestyin others. [42] At para 17, in Keuris Justice Barrows discusses the economic impact of welfare fraud: [17] It is also true that welfare has other effects, and they were noted in particular by Mr.

Justice Doherty of the Ontario Court of Appealin R. v. D'Amour (2002), (ON CA), 166 C.C.C. (3d) 477. There, the offender had, in the words of Mr. JusticeDoherty, "cheated" the social services system of just under $15,000 by failing to disclose income she earned while receiving socialassistance benefits. The income she earned would not have disentitled her to those benefits, but it would have reduced their amount. Shewas a single mother and used the money to pay for her daughter's education, in particular a dance school she wished to attend inGermany.

She was sentenced to 90 days in jail, to be served intermittently, followed by a period of probation for one year. She appealedher conviction and sentence. In dismissing the sentence appeal, Doherty J.A. said this in paragraph 69: As often happens in cases involving welfare fraud, the trial judge had a difficult sentencing decision. The appellant had no criminalrecord and was, in all other respects, a responsible member of the community. As a single parent, her lot in life has not been an easy oneand she has worked hard to provide for herself and her daughter. However, the fraud was serious.

The appellant systematically defraudedthe Department of a substantial amount of money over a long period of time, to fund what many would regard as an extravagance. Indoing so, she took money that properly should have gone to others and no doubt damaged the appearance of the integrity of the benefitsprogram and fed the prejudices of those who see every benefit program as a breeding ground for "welfare bums." [43] In Dennis, the offender was an indigenous woman with severe cognitive limitations. She was convicted of welfare fraud,perjury, two counts of false pretences, and a fraud by falsifying a document.

At the sentencing hearing, the sentencing judge accepted thejoint submission of Crown and defence and imposed one day in jail for one of the offences of false pretences, for which the Crown hadproceeded summarily, and a global sentence of a one-year conditional sentence order and a three-year probation order for all the otheroffences, for which the Crown had proceeded by indictment. The sentencing judge also ordered Ms. Dennis pay restitution to the victimsin the amount of $1,381.64 and $560 by the end of the probation period. [44] After sentencing, Ms.

Dennis learned that one of the collateral consequences of her two welfare fraud convictions and falsifyinga document conviction resulted in a lifetime ineligibility from receiving income assistance. Ms. Dennis appealed her sentence, seeking tohave those convictions reduced to a conditional discharge.

She did not appeal the conditional sentence order, followed by a three-yearprobation order, imposed on the conviction for perjury and one count of obtaining goods by false pretences. [45] The Court of Appeal in Dennis replaced the one-year conditional sentence order and three-year probation order with aconditional discharge accompanied by a three-year probation order that ran from the date of the original sentence. The terms of theprobation order included a term of restitution for the money of which the Ministry was defrauded.

The appellate court noted the fraudoffences were specific, discrete incidents that involve small amounts and did not indicate a pattern of deceit, planning and deliberation, orgreed. MacKenzie, J.A. held (at para. 30),“deterrence and denunciation could be properly be addressed through the strict terms of theprobation order forming part of the conditional discharge. [46] In Isaac, the offender pled guilty to a charge of welfare fraud in the amount of $5,720. Ms. Isaac had past convictions for fraud

and committed the index offence while on a conditional sentence for the same offence. She had been employed for an eleven monthperiod in 2007 at the same time as she was receiving welfare payments and failed to report to the government the $6,102 she earned. TheSaskatchewan Provincial Court canvassed a number of authorities which indicated a range of sentencing for welfare fraud to include asuspended sentence, a conditional sentence, and incarceration. Judge R. Green found a period of imprisonment was appropriate in thatcase. Ms.

Isaac, however, suffered from a mental illness and cocaine addiction during the commission of the offence. She was anindigenous offender with compelling Gladue factors, including the fact she had been sexually abused for six years by her grandfatherwhile she was in foster care as a child. The Court held these factors made clear the importance of rehabilitation and a non-custodialsentence and imposed a 16 month conditional sentence on strict and restrictive conditions. [47] In R. v. Collins, 2011 ONCA 182 the offender defrauded Ontario Works delivered on the Fort William First Nation ofalmost $100,000. Ms.

Collins was an indigenous first offender with a horrific upbringing. She also suffered from a gambling addiction,and supported a severely disabled child. The sentencing judge considered s. 718.2(2) of the Criminal Code and Gladue factors andconcluded the evidence did not support the argument systemic factors were responsible for bringing Ms. Collins before the court. Hesentenced Ms. Collins to 16 months' incarceration followed by two years' probation and ordered her to make restitution in the amount of$96,000.

On appeal, the Ontario Court of Appeal held the sentencing judge erred in placing an evidentiary burden on Ms. Collins toestablish a causal link between the systemic and background factors and commission of the offence. The following year, the SupremeCourt in Ipeelee, at para. 82, confirmed this was an accurate statement of the law. The Court of Appeal reduced Ms. Collins’ custodialsentence to ten months and confirmed the two years’ probation and restitution. The appellate court rejected Ms. Collins’ argument for aconditional sentence. A.C.J.O.

Rosenberg held that although there were many significant mitigating factors in relation to Ms. Collins, thenature and magnitude of the fraud was such that general deterrence and denunciation demanded a custodial sentence. Sentencing Range [48] The sentencing for welfare fraud range from a conditional discharge to a term of imprisonment. Section 380(1)(

a) imposes amaximum sentence of 14 years, as a result a conditional sentence is no longer available by operation of s. 742.1(

c) of the Criminal Codewhich states: Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if . . . (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; [49] A conditional discharge also is not available for an offence under s. 380(1)(

a) by operation of s. 730(1) of the Criminal Codewhich states: Conditional and absolute discharge 730

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [50] Even without the statutory prohibition, authorities held that a conditional discharge is generally not appropriate where, as here,general deterrence is the paramount sentencing principle: In R. v.

Foianesi, 2011 MBCA 33 Chartier JA (as he then was) statedat para 10): [10] I agree with the general proposition that discharges should not be available when general deterrence is the paramount sentencingprinciple. The reason is simple. General deterrence always causes a sentence to be harsher than what it would normally be if it was not afactor. See R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 , [2006] 1 S.C.R. 941 (at para. 36): Unlike some other factors in sentencing, general deterrence has a unilateral effect on the sentence.

When it is applied as a factor insentencing, it will always serve to increase the penalty or make it harsher; its effect is never mitigating. …. As a result, and as was stated by Clayton C.

Ruby et al., Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) at para. 9.17, “[a]need for general deterrence is inconsistent with a discharge.” Since the discharge is the most lenient sentence in the Code, any increase inpenalty brought about by general deterrence will necessarily take away the discharge provisions as a possible sentencing option. [51] The sentencing authorities cited by counsel are helpful but generally predate the changes to legislation which operates to barconditional discharges and conditional sentences in s. 380(1)(

a) offences. [52] In R. v. Fayemi, 2009 BCPC 123 (cited in Dennis), Judge F.E. Howard states at para. 21: [21] The legal authorities establish that ‘welfare fraud’ involving a significant amount of money will often attract a sentence ofimprisonment. Specific deterrence and rehabilitation are generally given less weight in these cases. General deterrence and denunciationtend to be the driving principles. There is no doubt that this type of offence is considered to be a very serious one.

The ‘welfare system’,if I might call it that, depends very much on the honesty of those who apply for assistance from the public purse. Fraudulent applicationsare a burden on the system. They impact the amount of money available for others who are in need of assistance. Judge Howardidentified the following sentencing cases relevant to determining a fit sentence similar to sentences imposed on similar offenders for

similar offences committed in similar circumstances. [53] In Fayemi, the 46 year old first time offender pled guilty to welfare fraud in the amount of $15,000 as a result of claiming andreceiving social assistance when she was actually working and earning a full salary. The Court had psychiatric opinion evidenceMs. Fayemi suffered from bipolar disorder which impaired her usual reasoning processes and judgment. She was a single parent of twoyoung children, one of who suffered from autism; her employment was also extremely stressful; and, she had a sense of financialresponsibility for her family in Ghana.

After canvassing a number of authorities where custodial or conditional sentences were imposedfor welfare fraud in the range of $19,000 to $57,000, Judge Howard noted (at para. 25), there were cases wherein sentences other thanimprisonment were imposed. He states at para. 31: [31] . . . Still, these decisions have a common theme.

In a case wherein the mental illness of the offender contributed in a significant wayto the commission of the fraud, the offender’s mental condition is an important, if not the most important, of the many factors to beconsidered on the sentencing hearing; general deterrence is much less likely to be the driving force behind the determination of theappropriate sentence in such a case; considerable weight should be given to the factor of rehabilitation.

In my view, these considerationsare equally applicable to the much smaller fraud committed by the accused before me and to the critical question that I must resolve:Must there be a jail sentence in this case (custodial or non-custodial) or will a suspended sentence adequately address the principles ofsentencing? [54] The sentencing judge acknowledged welfare fraud was a very serious offence; however, given Ms.

Fayemi’s mental illness,concluded that rehabilitation ought to be the primary focus, and as such, imposed a suspended sentence with probation. [55] The authorities upon which Judge Howard referenced in Fayemi included many of those cited in Keuris. In Keuris, JusticeBarrow notes the courts generally do not impose a jail sentence for welfare fraud except where it involves significant sums of money orthe offenders have criminal records. Those authorities imposing a custodial sentence included: a. R. v. Parker, Unreported, February 23, 2000, Vancouver Reg. No.

C28487-01-D, wherein the Provincial Court sentenced theoffender to six month incarceration for welfare fraud in the amount of $42,713.50. Although the Court denied the defence’s request for aconditional sentence, the trial judge did recommend the sentence be served under the electronic monitoring program if the Correctionsdepartment deemed that to be appropriate; b. R. v. Jeremy Smith, 2007 BCCA 468, a case involving a couple who had committed “welfare fraud” in the amount of$42,422.53 over a nine year period. Ms. Smith pled guilty and received a 12 month conditional sentence. Mr.

Smith went to trial andreceived a 14 month custodial jail sentence. Mr. Smith appealed on the principle of parity. The Court of Appeal upheld Mr. Smith’ssentence noting he took minimal responsibility for his conduct and attempted to blame his wife. [56] Fayemi and Keuris referenced the following authorities in which the court ordered a conditional sentence: a. R. v. Anderson-Davis, 2000 BCSC 42 , wherein the 53 year old first offender pleaded guilty to defrauding the Ministryof $136,700 in social assistance benefits between November 1984 and June 1988, and February 1992 to February 1996.

The courtimposed a conditional sentence of 18 months. The offender was able to make full restitution by selling his house; b. R. v. Oar, 2003 BCSC 336 , wherein the 47 year old offender was found guilty after a trial of defrauding the Ministryof $69,000 in social assistance benefits between August 1, 1994, and July 31, 2000. Ms. Oar had a criminal record which includedconvictions for dishonesty. The Court recognized these offences occurred while Ms. Oar was addicted to heroin and imposed a one yearconditional sentence; c. R. v.

Bjorn, 2004 BCPC 127 , wherein the offender pled guilty to defrauding the Ministry of $19,365.27 over a threeyear period after a preliminary inquiry. Judge Buller Bennett imposed a six month conditional sentence; and d. R. v. Dewitt and Forsyth, Smithers Reg. 16055-3, February, 1, 2002, BCSC, wherein a couple were convicted of "welfarefraud" in the amount of $57,000. The wife received a six month conditional sentence and the husband a nine month custodial sentence. [57] Those authorities in which the court imposed a conditional discharge were: a. R. v.

McIsaac, (BCSC), wherein the offender was charged with welfare fraud in the amount of $45,000.Ms. McIsaac had her husband moved to Canada in 1990 from the United States. Both received U.S. disability benefits. Ms. McIsaacapplied for and collected welfare in Canada without disclosing the couple’s U.S. income. Madam Justice Quijano took into considerationa number of factors including the real prospect of full restitution and Ms. McIsaac’s likely deportation if a conviction was recorded.Ms. McIsaac’s deportation would leave her husband with no primary caregiver.

Justice Quijano imposed a conditional discharge andrestitution, the consequences of which would leave the McIsaacs essentially destitute; and b. R. v. Gray, Kamloops Registry No. 82331-1, wherein Judge Frame of the BC Provincial Court granted a conditional dischargeto a woman convicted of welfare fraud in the amount of $20,000. The circumstances are not included in the judgment, however, it isapparent Ms. Gray suffered some mental illness because the Probation Order which accompanied the conditional discharge required thatMs. Gray attend psychiatric or mental health counselling.

Aggravating and Mitigating Factor and Collateral Consequence [58]

Section 380.1 contains statutory requirements when imposing a sentence for fraud. The relevant portion of the

section states: Without limiting the generality of

section 718.2, where a court imposes a sentence for an offence referred to in

section 380, . . . it shallconsider the following as aggravating circumstances: (

a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;

[59] In this case the Crown submits the magnitude and duration of the fraud are aggravating. Specifically: a. Ms. G. filed monthly reports during the offence period representing her income was zero; b. Ms. G. met with income assistance workers on multiple occasions during the offence period and perpetuated the pretence shewas unemployed; c. Ms. G. had been admonished and assessed overpayments in the past for failing to report to the Ministry her income frombabysitting, cleaning and working casually in a pub; d. Ms. G. concealed from the Ministry a RBC bank account where she deposited her employment income; e.

The fraud continued for about 32.5 months; and f. The fraud totalled $30,968.12, a significant sum. [60] The mitigating factors present in this case include: a. Ms. G. has entered an early guilty plea which the Court accepts as an expression of remorse; b. Ms. G. accepts responsibility for her actions by offering to meet with a financial planner to pay restitution to the Ministry. In hercorrespondence of May 15, 2018, Ms. G. writes: c. I fully acknowledge that my actions and behaviors are a serious crime. I feel very ashamed. As a young single mom of fourchildren I am scared for my children.

I am hoping that what I have shared in this letter has shed some light on what I have done toimprove myself to become a better person, and that I will never do this again. d. Ms. G. has the support of her family and community. The Gladue Report (Exhibit 1), includes six character references andletters of support; e. Ms. G. is pro-social with no criminal record. She has sought to improve her prospects in life by attending various [omitted forpublication] community and self-help programs; f. Ms. G. realizes she has endured much trauma in her past and has taken positive steps toward her rehabilitation.

She has attendedcounselling and support for her mental health issues, including anxiety and depression, from [omitted for publication] Health andNorthern Health’s Adult Mental Health and Addictions. She also sought support through Child and Youth Mental Health Family SupportServices and [omitted for publication] Unlocking Aboriginal Justice; g. Ms. G.’s fraud was motivated by her need to care for her children, a burden which their fathers shirked in whole or in part; h. Ms.

G. is an indigenous offender with sympathetic circumstances and significant Gladue factors, which include the effects ofintergenerational familial dysfunction arising from her ancestor’s experiences at residential school; trauma, substance abuse, familyviolence, poverty, and unemployment. I am satisfied those historical factors, both systemic within society and specific to Ms. G. likelyplayed a role in her offending behaviour; and i. Ms. G. struggles with some cognitive impairment, possibly as a result of her in uteral exposure to alcohol.

Collateral Consequences [61] The appellate court in Dennis applied the principles espoused in R. v. Pham, 2013 SCC 15 , at paragraphs 31 to 35, toaddress collateral consequences of Ms. Dennis conviction which resulted in a lifetime ineligibility from receiving income assistance.Section 15(1) of the Employment and Assistance Act, S.B.C. 2002, c. 40 which imposed this automatic lifetime ban on income assistancewas repealed in 2015. Defence counsel has not raised any further collateral consequences. Analysis [62] Ms.

G. is a sympathetic offender and it is difficult to impose upon her greater hardships than life has served upon her thus far.Nevertheless, she defrauded the Ministry of $30,968.12 in social assistance benefits. She committed this offence over 32.5 monthsthrough deliberate, planned, and covert action. [63] The paramount sentencing principles in welfare fraud is set out in s. 718 (

a) and (b), namely denunciation and deterrence. As tothe latter, it is general deterrence that is the driving principle. Welfare fraud is difficult to enforce and detect. The integrity of the welfaresystem depends on honest self-reporting. [64] As the Manitoba Court of Appeal explained in Foianesi, where general deterrence is the primary goal, greater emphasis isplaced on the gravity of the offence than the responsibility of the offender.

General deterrence justifies a higher sentence than wouldotherwise be imposed because the court is sending a message to others that might be inclined to engage in a similar criminal activity.Although some challenge the notion of whether general deterrence is effective, it is a codified objective of sentencing, and it would be anerror for a judge to conclude otherwise: R. v. Rastgoei, 2008 BCCA 242 . Still the sentence must be proportionate, and theoffender must be deserving of the sentence.

A person cannot be made to suffer a disproportionate sentence to merely send a message todiscourage others from offending: R. v. Lacasse, 2015 SCC 64. [65] Although the authorities support a non-custodial sentence in the circumstances of this offence and this offender, neither aconditional sentence nor a conditional discharge is available. The Crown proposes a suspended sentence and a two year probation orderpursuant to s. 731 of the Criminal Code.

Probation [66] The Crown proposes a suspended sentence with a two year probation order which is both rehabiltative and punitive. Itsprincipal punitive condition is a period of house arrest for one year. The question I need to answer is whether this is a permissible term ofprobation.

Section 732.1 does not specify a curfew as a compulsory or optional condition of a probation order.

Section 732.1(3)(h),however, empowers the Court to impose any probation condition it considers desirable for protecting society and facilitating theoffender’s successful reintegration into the community. A probation order does not have to address both rehabilitation and protection ofthe public. It will suffice if the term serves one or both of the stated purposes: R. v. Bourque (KAN), 2013 BCC 447 at para. 28: [67] In R. v. Duguay, 2019 BCCA 53 , Mr. Justice Fitch for the Court of Appeal explained the purpose of probation atparas. 60 and 61: [60] As explained in R. v.

Proulx, 2000 SCC 5 at para. 32, probation has traditionally been viewed as a rehabilitativesentencing tool. A probation order may have punitive effects or aspects. But punishment is not the dominant purpose of such an order noris it an inherent aspect of that order. [61] While the primary purpose of a probation order is rehabilitative rather than punitive, its conditions will inevitably entail somerestriction of liberty. As Bennett J.A. noted in R. v. Voong, 2015 BCCA 285 at para. 37, probation orders are designed not onlyto reintegrate offenders into the community but to protect society.

The conditions imposed in pursuit of that goal will frequently beexperienced by the offender as entailing “negative consequences”. What is prohibited is the imposition of a term of probation for aprimarily punitive purpose: Shoker at paras. 10, 13. [68] At paras 65 to 67 in Duguay, the Court of Appeal set out an interpretive framework for the application of s. 732.1(3)(h): [65] First, while “reasonable conditions” will generally be linked to the particular offence, this is not an absolute requirement.

What isrequired is a nexus between the offender, the protection of the community and the offender’s reintegration into the community: [Shoker]at para. 13. [66] Second, the broad power to craft conditions of probation under the residual clause is an important tool in a sentencing judge’sarsenal. The Court recognized in Shoker that it would be impossible for Parliament to contemplate and spell out every possible conditionthat might serve to advance identified rehabilitative and public protection goals: at para. 14. In R. v.

Knott, 2012 SCC 42 , theCourt confirmed that sentencing judges must retain as much flexibility as the Code permits in crafting individualized sentences thatreflect the principles of sentencing, including reliance on community-based sanctions as an alternative to incarceration in appropriatecases: at paras. 1-2, 10, 43; ss. 718.2 (d)-(

e) of the Code. There are, in fact, only a few judicially-recognized limits on the kinds ofconditions that can be imposed under the residual clause. These limits include the rule against delegation of a judicial function. They alsoinclude the need for probation conditions to be clear, unambiguous and enforceable.

In addition, in accordance with the language of theresidual clause, the conditions must be “reasonable” in the circumstances and “desirable” to achieve the purposes of a probation order.Finally, they must be compliant with other provincial and federal legislation, including the Charter: Shoker at para. 14; R. v.

Traverse,2006 MBCA 7 , at para. 24. [67] Third, just as the wording of the residual clause can inform the sentencing judge’s exercise of discretion in imposing one of theenumerated optional conditions, those enumerated conditions can, in turn, assist in interpreting the scope of the “other reasonableconditions” that can be imposed under the residual clause: Shoker, per Charron J., for the majority, at paras. 14, 22; per LeBel J.,concurring in the result, at para. 30. [69] In R. v.

Carrillo, 2015 BCCA 192, the first time offender received a two-year suspended sentence, after pleading guilty topossession of cocaine for the purpose of trafficking. The Crown appealed, arguing the sentencing judge erred in principle by failing toappreciate the seriousness of the offence and Mr. Carrillo’s degree of moral culpability; and, secondly, the sentence was unfit. Thesentencing judge crafted a probation order with a strict curfew term, the purpose of which appeared to be for the sole purpose ofdepriving Mr. Carrillo of his liberty and in effect punishing and deterring him from future offending.

The British Columbia Court ofAppeal upheld the the suspended sentence and the curfew term. Madam Justice MacKenzie stated: [30] I agree it would have been wrong to use a suspended sentence and probation to effectively impose a conditional sentence when oneis not available. As stated in Scott at para. 9, citing R. v. Proulx, 2000 SCC 5 at para. 30, the court is not enabled to impose anunfit sentence in an attempt to replicate an unavailable sentencing option. A conditional sentence is a jail sentence that is served in thecommunity. A suspended sentence and probation are not.

As the court discussed in Proulx (at para. 28), as noted in Scott (at para. 8), “…there are strong indications that Parliament intended the conditional sentence to be more punitive than probation…” despite thesimilarities between the two sanctions regarding their rehabilitative purposes. But that is not to say a suspended sentence may not have adeterrent effect.

Furthermore, stringent conditions of probation may be imposed. . . . [35] Although suspended sentences are primarily rehabilitative in nature, they can also address deterrence because an offender can bepunished for repeating his criminal conduct during the period of probation, and face serious consequences from the conviction at hand:Criminal Code ss. 732.2(5) and 733.1(1).

This feature of suspended sentences (sometimes referred to as the “Sword of Damocles”)represents an underlying but pervasive threat to the offender’s liberty. [36] Strict conditions, including a substantial deprivation of liberty (e.g. the strict curfew in this case) can also be required by theprobation order. [37] As previously noted, Proulx distinguished between conditional sentence orders which are jail sentences served in thecommunity, and suspended sentences which are not. Deterrence and denunciation can also be addressed other than through a jailsentence. In R. v.

D.E.S.M., (BC CA) . . . a five-member division of this Court in the context of a Crown sentenceappeal for a historical sexual assault said this:

[20] There is no suggestion that the accused is a danger to anyone so he need not be isolated in order to protect the public. By convictinghim, society has already stigmatized him as a person who has committed a serious offence, and has denounced his offence. Quiterecently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence of criminalproceedings.

The Court has been saying what most lawyers and criminologists have known all along, that a public charge, trial andconviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way societybrings offenders to account for their misconduct. [70] In R. v. Bosco, 2016 BCCA 55, the Court of Appeal rejected the proposition a judge can impose a probation condition solely topunish the offender.

Dickson JA wrote (at para 55): While a condition may serve one or both goals of protecting society and facilitating reintegration, if imposed solely to punish theoffender it will lack the requisite nexus. Without the requisite nexus, a probation condition, punitive or otherwise, cannot be imposedlawfully. [71] In R. v.

Singh, 2016 MBCA 38 , Steel JA for the Manitoba Court of Appeal cited Bosco then stated: [16] A curfew certainly has punitive aspects, but if the evidence indicates that there is a nexus between the offender and the protectionof the community or the reintegration of the accused, then it is a reasonable condition in the circumstances. [72] Justice Steel went on to hold at para. 27: [27] Conditions of probation cannot be imposed for primarily punitive purposes, although a reasonable condition may have a residualpunitive aspect to it.

Conditions imposed under the residual clause must be ordered either for the purpose of protecting society, orfacilitating the particular offender’s successful reintegration into the community, or both.

Although reasonable conditions will generallybe linked to the offence, this will not always be the case, and it may be that a reasonable condition is linked to the needs of the offender.As long as there is a nexus between the condition, the offender and the protection of the community and/or the offender’s reintegrationinto the community, and evidence supporting the existence of that nexus, the condition could be considered reasonable. [73] Save for the curfew, all the probationary terms proposed by the Crown in this case are connected to either Ms.

G.’sreintegration into the community or the protection of the community, and sometimes both. The Crown has not explained how a curfewwill serve any rehabilitative purpose or protect the public. Other proposed conditions already address monitoring Ms. G. in thecommunity. The curfew condition is primarily if not wholly punitive.

In my view the Crown is attempting to do what Justice Mackenziesays is prohibited, which is to use a suspended sentence and probation to effectively impose a conditional sentence when one is notavailable. [74] The question remains whether or not a suspended sentence with probation which does not contain a curfew will still adequatelyaddress the principles of denunciation and principle deterrence. Restitution [75] The Ministry has requested full restitution and the Crown proposes a stand alone restitution order pursuant to s. 738.

Restitutionorders give effect to many of the principles of sentencing including denunciation, specific and general deterrence and rehabilitation: R. v.Yates, 2002 BCCA 583 , para. 7. Sections 718(

e) and (

f) of the Criminal Code refer to two objectives of sentencing particularlyapplicable to restitution orders, namely: (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [76] In Exhibit 1, Ms. G. expressed a willingness to try and pay restitution to the Ministry. In her closing submissions, counsel forMs. G. asked the Court to order something less than full restitution given Ms. G.’s financial difficulties. Frankly, I am not satisfiedMs. G. has provided the Court with a persuasive financial information to show she is unable to pay restitution in the amount sought.

I ammindful of s. 739.1 which holds the offender’s financial means or ability to pay does not prevent the court from making a restitutionorder. I am also cognizant that restitution is a critical component of imposing a sentence in which the principal of general deterrence isparamount. Conclusion [77] I have considered the circumstances of this offence, Ms. G.’s personal circumstances, including her indigenous heritage and herlack of criminal record, and the relevant authorities. I agree a non-custodial sentence is appropriate.

As Justice MacKenzie stated inCarrillo, the principles of denunciation and deterrence can arise from the conviction itself. Moreover, the probation and restitution ordersalso give effect to those principles. [78] Pursuant to Section 731(1)(

a) I am suspending the passing of sentence and direct Ms. G. to be released on conditions prescribedin a probation order which will remain in force for two years. The terms of that probation order will be as follows: a. You must keep the peace and be of good behaviour. b. You must appear before the court when required to do so by the court. c. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the courtor the probation officer of any change of employment or occupation. d. You must report in person by telephone to a probation officer at Smithers Community Corrections by 3:00 PM tomorrow

August 14, 2019, and after that, you must report as directed by the probation officer. e. When first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer. f. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. g. You must complete 30 hours of community work under the direction of the probation officer.

Your community work service must be completed within 12 months of this order. h. Before seeking, obtaining, or continuing any employment, or becoming a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person or corporation, you must inform the employer or the organization about this conviction. [ 79 ] Pursuant to s.738 (1)(

a) of the Criminal Code I order M.F.G. to pay restitution in the amount of $30,968.12 to Her Majesty the Queen in Right of the Province of British Columbia for loss of property. The payments are to be made payable to the Ministry of Finance and mailed to: Ministry of Social Development and Poverty Reduction Financial and Administrative Services Branch PO Box 9950 Stn Prov Govt Victoria BC V8W 9R3 ____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia