R. v. Street Date:, 2012 BCPC 404

Citation: R. v. Street Date: 20121105 2012 BCPC 0404 File No: 29607 Registry: Vanderhoof IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GORDON FREDERICK STREET REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: J. Bird Counsel for the Defendant: K. Jones Place of Hearing: Vanderhoof , B.C. Date of Hearing: February 20, February 27, 2012, August 16, 2012 Date of Judgment: November 5, 2012

[ 1 ] Gordon Frederick Street stands charged that: Count 1: Gordon Frederick STREET, between the 1 st day of September, 2001 and the 1 st day of December 2006, inclusive, at or near Vanderhoof and elsewhere, in the Province of British Columbia, did by deceit, falsehood or other fraudulent means defraud the Province of British Columbia, Ministry of Housing and Social Development, of monies in excess of five thousand dollars ($5,000.00), contrary to Section 380(1) (

a) of the Criminal Code . [ 2 ] The theory of the Crown is that Mr. Street was overpaid Income Assistance payments in the sum of $50,044.08 between the September, 2001 and November 2006. These overpayments occurred, according to the Crown, because Mr. Street did not disclose that he was in a 23 year common-law relationship with another man during the time he was receiving assistance. Facts [ 3 ] Gordon Street was eighteen or nineteen years old when he met Don Lewis in Vancouver. Mr. Lewis would have been in his early forties. Both men were gay and they commenced a relationship.

Between 2001 and 2006, the indictment time frame, the parties resided together at some times and separate and apart at others. For example, Mr. Street lived separate and apart in Port Alberni for extended periods of time between 2001 and 2006. Mr. Lewis testified that the relationship was sexual. [ 4 ] During the time the parties lived together, each of them contributed equally towards the rent for the residence. In or about 1999, Mr. Lewis bought a home near Vanderhoof. After the home purchase, Mr.

Street continued to pay rent although not every month. (See Tab 17 of Exhibit B, as this is an example of the landlord-tenant relationship between the parties from as early as September 10, 2001, September 18, 2001 and December 3, 2003) [ 5 ] It is important to note that in each of the above documents it is disclosed that Donald Lewis is also living in the household with Mr. Street, although Mr. Lewis is listed as the landlord to whom the $400 monthly rental is paid. [ 6 ] At all times material to this indictment, Mr. Street was in receipt of Income Assistance.

For example at Tab 1 of Exhibit B there is a BC Benefits Eligibility Review dated September 18, 2001. (I note this to be the same date as one of the landlord documents at Tab 17) On this review document the marital status for Mr. Street is given as “Single – Never Married” (same-sex marriage was not possible in British Columbia before 2003). [ 7 ] In another Employment Assistance Review dated December 3, 2003, the marital status of Mr. Street is again recorded as “Single – Never Married” (see Tab 4 of Exhibit B).

Also dated December 1, 2003 at Tab 17 of Exhibit B is a document entitled “Intent to Rent/Room and Board”. In that document, the names of all persons living in the residence, both family and non-family are listed as Gordon Street and Don Lewis. The homeowner’s name is noted to be Don Lewis. Also at Tab 17, dated December 1, 2003, is a receipt for the December rent of $400 plus a damage deposit of $200 received from Gordon Street and signed by Don Lewis. These documents signed in 2003 came about as Mr. Street had just returned from Port Alberni where he had been for 4 – 6 months. [ 8 ] Mr.

Lewis went through personal bankruptcy in 2004. [ 9 ] Mr. Lewis filed tax returns during the years 2001 to 2006 and reported himself as a single person and not “equivalent to married status”. [ 10 ] Although Mr. Street and Mr. Lewis had a joint bank account, it was in Port Alberni (see Tab 17 Exhibit B, document dated March 16, 2005). [ 11 ] At no time did Mr. Street have access to the bank account of Mr. Lewis. (transcript February 20, 2012, page 43 lines 43-46) [ 12 ] At various times between 2001 and 2006, Mr.

Street lived elsewhere and paid rent for his own residence – in Port Alberni (transcript February 20, 2012 page 45 lines 29 – 32) and Fort Fraser (transcript February 20, 2012 page 45 line 35 – 39). [ 13 ] The parties stopped sharing the residence near Vanderhoof in early February 2006. The Vanderhoof house was sold in June 2006 and Mr. Street paid rent to Mr. Lewis up to the date of the sale of the house. [ 14 ] In February, 2007, Mr. Street contacted the Ministry of Social Development worker Linda Monteith, inquiring about making a claim for spousal maintenance against Mr. Lewis. According to Ms. Monteith, Mr.

Street represented that he and Mr. Lewis had been in a common-law same sex relationship for 23 years and that the relationship ended in July 2006. [ 15 ] Ms. Monteith testified that the criteria she used to determine if a common-law relationship existed was “somebody must live together for at least two years” (transcript February 20, 2012 page 71 line 3 – 15). [ 16 ] Ms. Monteith questioned Mr. Street about receiving Social Assistance benefits as a single person if he was in a common-law relationship with Mr. Lewis as he stated. She also said that a spouse is added to a person’s file by the recipient here Mr.

Street. When asked why he had not mentioned Mr. Lewis as a common-law spouse since the start of his welfare claim in 1991, Mr. Street stated he wanted his own money. [ 17 ] Ms. Monteith went on to explain that the significance of a common-law spouse on Income Assistance is that the income assistance is income tested – that is, if the parties are a family unit, both individuals incomes would be considered when determining what, if any, income assistance was payable. [ 18 ] Ms.

Monteith testified that a common-law spouse would be considered as a family unit, but that two friends living together would not, nor would a brother and sister living together.

[ 19 ] As a result of her conversation with Mr. Street in February 2007, Mr. Street completed an Assignment of Maintenance Rights dated February 21, 2007. (See Tab 12 of Exhibit B) [ 20 ] By a letter dated February 26, 2007, Mr. Lewis was advised that the Ministry of Employment and Income Assistance would be pursuing a spousal support order on behalf of Mr. Street against him. (See Tab 4 of Exhibit 5) [ 21 ] According to the Ministry running records, as interpreted by Ms. Monteith, no spousal support order was obtained because legal counsel for the Ministry advised that because Mr.

Lewis was retired and on a pension, his income was so low he did not earn enough to pay spousal support. Therefore, it was not likely a spousal support order would be obtained. As Ms. Monteith testified “it was just adjourned”. (See transcript February 20 page 77 line 28) [ 22 ] Under cross-examination, Ms. Monteith was unable to distinctly articulate how a common-law relationship was defined for the purposes of her Ministry. (See transcript February 20 page 78-81) [ 23 ] As a result of the application by Mr. Street for spousal maintenance from Mr.

Lewis, and the Assignment of Maintenance Rights, the Ministry began an investigation of Mr. Street for fraud. [ 24 ] Mr. Orville Smith, an Investigator for the Ministry of Social Development, testified that he reviewed the records for the Income Assistance claim by Mr. Street specifically for the years of 2001 to 2007. In response to questions from Crown Counsel, Mr. Smith reviewed the BC Benefits Eligibility Review dated September 18, 2001, at Tab 1 of Exhibit B. Mr.

Smith, when asked for his definition of a common-law relationship, stated that the Act (the Employment Assistance Act) has a definition as follows: “The Act has a definition of a common-law or financial dependency relationship.

That relationship is defined as a person who has lived with another person, same sex, gender or otherwise, for a period of 3 months, or they have lived for 9 of the past 12 months, or they have a financial dependency relationship or an interdependency relationship, a relationship that is deemed by the Minister to be similar or familiar as an interdependency relationship in a marriage-like relationship.” (See transcript February 27, 2012 page 44 lines 27-37) Mr. Smith also confirmed this definition was not set out in the document dated September 18, 2001. [ 25 ] In response to a question from the Court, Mr.

Smith agreed that the statement “Single – Never Married” on the September 18, 2001 document was accurate because, as a gay man at that time, Mr. Street could not have been married in British Columbia. [ 26 ] Mr. Smith confirmed that from his review of the running records, the spousal support claim by Mr. Street against Mr. Lewis never proceeded and was adjourned generally. [ 27 ] Mr. Smith testified that he received a letter date stamped March 12, 2007 from Mr. Lewis. In this letter Mr. Lewis denies being a common-law spouse and states that his relationship with Mr.

Street was that of “buddies”. [ 28 ] It is important to note Mr. Smith was at no time referred to the documents at Tab 17 in Exhibit B or the fact that Mr. Lewis and Mr. Street were residing together and that Mr. Lewis was noted to be the landlord of Mr. Street. Issue [ 29 ] Has the Crown proven that Mr. Street made a false statement and that he made that false statement knowing the statement to be false?

Discussion [ 30 ] The Crown, in its written closing arguments, set out the elements of fraud thus: “The elements of fraud are: 1) There was a representation (the a ct ) 2) That the representation was false 3) The accused knew the representation was false ( mens rea ) 4) There is a risk of deprivation as a result of these false representations.” [ 31 ] The burden on the Crown, as in any criminal case, is proof beyond a reasonable doubt. [ 32 ] The Crown submits that Mr. Street represented that he was single - living alone to the Ministry in his Eligibility Review. However, this is not what the evidence discloses.

The Eligibility Review of September 18, 2001 at Tab 1 of Exhibit B states that Mr. Street was “Single – Never Married”, which was true. The documents at Tab 17 of Exhibit B dated September 18, 2001, entitled

Confirmation of Accommodation costs disclose that Don Lewis was living in the residence with Mr. Street. Don Lewis is named as the landlord. [ 33 ] The Eligibility Review dated December 3, 2003, at Tab 4 again repeats “Single – Never Married”. However, this document has to be read in the context of the other documents dated December 3, 2003 at Tab 17 of Exhibit B which again disclose that Mr. Smith and Mr. Lewis were residing together in the same residence and that Mr. Street was paying rent to Mr. Lewis. [ 34 ] The Crown in their submissions, under the title False Representations state “Mr.

Street did not even set out that Mr. Lewis was living in the same residence”. As noted above, this submission is wrong as the evidence does not support it and is, in fact, contrary to it. [ 35 ] The fact that Mr. Street, after the fact, decided to proceed with an application for spousal support does not establish that during the time of the indictment, he was in a common-law relationship with Mr. Lewis. Mr. Lewis himself in the March 2007 letter at Tab 18 of Exhibit B denies the relationship was more than “buddies”.

As to his testimony in this case in 2012, I do not believe him, if he contradicts his 2007 “buddies” position. At best, Mr. Street and Mr. Lewis may have been more than room-mates, and may have been “buddies with benefits”, but I do not find beyond a reasonable doubt, they were in a same sex common-law relationship. Mr. Street may have taken the position that they were common-law spouses but the first time this is mentioned is a full year after the parties stopped residing together. [ 36 ] I find that Mr. Street did disclose that he was living in the same residence as Mr. Lewis on at least two occasions.

The Ministry representatives did not make any inquires about this living arrangement that I have any evidence about. [ 37 ] Accordingly I find the Crown has failed to prove beyond a reasonable doubt that Mr. Street made false statements and that he knew them to be false. [ 38 ] I find him not guilty. _________________________ D. J. O’Byrne Provincial Court Judge