COURT OF APPEAL FOR ONTARIO
CARTHY, DOHERTY and LASKIN JJ.A.
BETWEEN:
Clayton Ruby and
HER MAJESTY THE QUEEN
Patricia Fry
for the appellant
Respondent
- and -
Renee Pomerance
for the respondent
MOREL D’AMOUR
Appellant
Heard: May 1, 2002
On appeal from the conviction entered by Justice Gloria J. Epstein on November 22, 2000 and the sentence imposed dated February 16, 2001.
DOHERTY J.A.:
I
1[1] The appellant cheated the Community Services Department of the City of Toronto (the “Department”) of $14,636.98 over a two-year period. She was eventually charged with fraud. At trial, it was not suggested that the appellant’s conduct did not amount to fraud as described in s. 380 of the Criminal Code.
2[2] The appellant contended, however, that the manner in which the police acquired the documents from the Department that provided proof of the fraud violated her constitutional rights under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. She further argued that the vindication of those rights demanded the exclusion from evidence of the originals of those documents, thereby allowing her to escape criminal liability for her fraudulent conduct.
3[3] The trial judge found no violation of the Charter and that, in any event, the documents should not be excluded under s. 24(2) of the Charter.[1] [1] She convicted the appellant and imposed a sentence of ninety days to be served intermittently followed by probation for one year. The probation included a term requiring the appellant to pay $100 a month towards the restitution order that the trial judge had also made as part of the sentence.
4[4] The appellant appeals both conviction and sentence. I would dismiss the conviction appeal. I would allow the sentence appeal, but only to the extent of deleting the term of the probation order requiring the appellant to pay $100 a month towards satisfaction of the restitution order.
II
5[5] The appellant received social assistance under the General Welfare Assistance Act, R.S.O. 1990 c. G-6 (the “Act”). The program created by the Act is administered by the Department. All three levels of government provide funding. The program was designed to provide basic income support for persons in short term need. Entitlement for assistance is determined by calculating the maximum benefit for which a person is eligible and subtracting any income received by that person from other sources. [2] [2]
6[6] Persons applying for assistance under the program are required to make disclosure of their financial circumstances, including income and employment status. Eligibility and quantum of assistance depend in part on the applicant’s income. Individuals who are deemed eligible for assistance are required to report any change in their financial circumstances, including any change in their income while receiving assistance. The proper administration of the program depends on accurate ongoing reporting of matters relevant to eligibility by those applying for or receiving assistance.
7[7] In April 1994, the appellant applied for assistance.[3] [3] In her application she indicated that she had no income or earnings. The application contained the following notice:
The Criminal Code of Canada s. 380 states that everyone who by deceit, falsehood or other fraudulent means defrauds the public of any property, money or valuable security, is guilty of an indictable offence.
The Family Benefits Act, Sec. 19/General Welfare Assistance Act, Sec. 16 states that a person who knowingly obtains or receives a benefit/assistance that he/she is not entitled to obtain or receive under the Act and the regulations is guilty of an offence.
8[8] The application also included a statutory declaration signed by the appellant. That declaration included the following:
… I/We have supplied the information in this application to the best of my/our knowledge and belief. All statements in this application are true and no information required to be given has been withheld or omitted.
Should an allowance be granted on the basis of the foregoing information, I/we will notify the Welfare Administrator, the Director or his/her representative as the case may be, of any change of relevant circumstances of any beneficiary of the allowance/assistance to be provided, including any change in circumstances pertaining to assets, income or living arrangements.
I/We acknowledge that this is an application for assistance pursuant to the General Welfare Assistance Act as indicated in Section 1 of this application. I/we further acknowledge that should there be eligibility for social assistance under the Family Benefits Act this application and the information contained therein may be used for the purpose of verifying eligibility and I/we undertake to provide any additional information which may be required at that time. [Emphasis added.]
9[9] Immediately below the statutory declaration executed by the appellant on the application, the following notice appeared:
Notice with Respect to Collection of Personal Information
(Freedom of Information and Protection of Privacy Act)
(Municipal Freedom of Information and Protection of Privacy Act)
10[10] At the relevant time, both of these privacy statutes permitted disclosure “to a law enforcement agency in Canada to aid in an investigation undertaken with a view to a law enforcement proceeding”.[4] [4]
11[11] At the same time that the appellant completed her application and statutory declaration, she executed a document entitled “Consent to Disclose and Verify Information”. That document included the following terms:
I, D’Amour Dorel, consent to the release of information to an authorized representative of the Municipality of Metropolitan Toronto [and] Ministry of Community and Social Services for the sole purpose of determining or verifying my eligibility for social assistance.
Without restricting the generality of the above-noted consent, I specifically consent to the release of information to Municipality of Metropolitan Toronto [and] Ministry of Community and Social Services relating to any bank account, safety deposit box, assets of any nature or kind whatsoever held by me or on my behalf or by or on behalf of my spouse, any of my dependants or my foster child(ren) (if applicable); alone or jointly with any other person, in any financial institution.
I further consent to the exchange of information between the municipality …, the Ministry of Community and Social Services of Ontario, the Government of Canada, the government of any other province, any agency thereof, or any of them in order to verify information for the sole purposes of determining or verifying my eligibility for social assistance. [Emphasis added.]
12[12] The appellant did not make any false statements in her initial application and it was determined that she was entitled to receive assistance under the Act. About two months later, she commenced employment and continued that employment for the next two years. Although the appellant reported changes in her circumstances which enhanced her entitlement to benefits under the Act, she did not report her employment. She continued to receive benefits under the Act based on her ongoing representation that she had no income or earnings. Had she disclosed her employment income, the appellant would not have been totally ineligible for benefits under the Act, but her benefits would have been reduced by some $14,636.98 over the two year time period.
13[13] In March 1997, Mr. Woo, a caseworker with the Department, met with the appellant and asked her to provide him with her T4 slips for the years 1994, 1995 and 1996. He made this request because the Department had received documents suggesting that the appellant, contrary to her representations, had been employed while receiving benefits. Under s. 10 of the Act, the Department could withhold benefit cheques if the appellant did not produce the T4 slips. Mr. Woo told the appellant that benefit cheques would be withheld until she provided the requested T4 slips. She subsequently gave the T4 slips to Mr. Woo and received her benefit cheques. The T4 slips confirmed that the appellant had received some $28,000 in undisclosed income.
14[14] Mr. Woo referred the appellant’s file to Ms. Woods, an eligibility review worker. It was her job to determine eligibility for benefits under the Act and whether any overpayments had been made. Ms. Woods contacted the appellant’s employer and confirmed her employment. She prepared a summary reflecting the income earned by the appellant and the consequent benefit overpayments made to the appellant.
15[15] Ms. Woods referred the appellant’s file to the Fraud Control Unit within the Department. That unit gathers additional information to determine whether overpayments have been made and, if so, what action should be taken to recover those overpayments. The Fraud Control Unit refers files to the Special Review Committee (SRC). The SRC consists of a Crown Attorney, a police officer, a civil lawyer from the City of Toronto’s Legal Department and a welfare supervisor. The SRC decides whether there should be recourse to criminal charges, civil proceedings, or a simple recovery of the overpayments. About ten percent of the files reviewed by the Fraud Control Unit that reveal overpayments are referred to the SRC.
16[16] The ultimate determination of whether a matter should be referred to the police for fraud prosecution is made by the SRC. Caseworkers and eligibility review workers are not concerned with whether conduct is fraudulent in the criminal sense and do not interact with the police. They determine eligibility and whether overpayments have been made. These workers appreciate, however, that any time an overpayment is discovered there is always the possibility that the file will eventually be referred to the police for criminal prosecution.
17[17] In March 1998, some ten months after Mr. Woo’s initial inquiries, the SRC, applying established informal criteria, decided that the appellant’s file should be referred to the police for criminal prosecution.
18[18] The police were given copies of the following documents:
- • the appellant’s T4 slips for 1994, 1995 and 1996;
- • banking records for the appellant’s account;
- • employment information relating to the appellant prepared by her employer; and
- • various forms and reports referable to the appellant’s application for and receipt of assistance during the relevant time period.
19[19] The police charged the appellant with fraud based on the information and the documentation obtained from the Fraud Control Unit. For court purposes, however, the police issued subpoenas and obtained originals of the documentation from various sources.
III
20[20] Counsel for the appellant accepts that the Department could lawfully require the appellant to provide income and employment information as a condition of receiving benefits under the Act. Counsel also accepts that the Department could use that information for “regulatory” purposes associated with the administration of the program, including prosecution under the Act for the improper receipt of benefits. Counsel submits, however, that the state’s use of the documents in a criminal prosecution alleging the fraudulent obtaining of benefits goes beyond the permitted “regulatory use”. He contends that once the state started down the criminal law trail, the appellant’s constitutional rights under s. 7 and s. 8 of the Charter had to be assessed in light of the criminal proceeding.
21[21] Counsel argues that the use of documents obtained from the appellant by the Department in criminal proceedings violates s. 7 of the Charter in that it offends the principles against self-incrimination in a manner that does not accord with the principles of fundamental justice. He further contends that the taking of the documentation by the police from the Department was a seizure under s. 8 of the Charter, and that as the seizure was not judicially authorized, the state has the onus of demonstrating that it was reasonable. It is counsel’s position that the state did not meet that onus.
22[22] Counsel submits that if either or both constitutional violations are established, the evidence flowing from the state’s use of the documents should have been excluded from the trial. Without that evidence, it is acknowledged that the Crown had no case.
IV
23[23] The trial judge considered the s. 8 claim first. She recognized that s. 8 protects reasonable expectations of privacy and that the existence of a reasonable expectation of privacy depends on a contextual analysis of the totality of the circumstances. She referred to the factors identified in R. v. Plant (1993), 1993 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.) and applied those factors to the circumstances of this case. Three extracts from the trial judge’s reasons (at paras. 22 to 24) capture the analysis that led her to conclude that there was no violation of s. 8.
[C]onsidered in context, it is clear that in the circumstances of this case the applicant’s consent to the agency’s use of the information went beyond a simple failure to object. In this case the consent was real. The applicant knew that the agency intended to use the information to consider eligibility. She knew that considering eligibility also meant considering ineligibility. She knew that it was an offence to accept money when she was not eligible. Further, the very forms she signed for the purposes of obtaining benefits alerted her to the fact that other legislation was relevant to the use that the agency could make of her financial information. I find that in the circumstances, in applying for benefits the applicant relinquished her right to have the information necessary to the agency as part of the regulatory scheme set up to further the purposes of the Act protected from use by the state for prosecution of a fraud under the Act.
…The applicant brought this documentation to the agency in circumstances where she knew or ought to have known of an investigation into the legitimacy of her receipt of benefits. Neither the circumstances under which the records were obtained by the agency nor the circumstances under which they were transferred to the police were intrusive or high-handed. What happened was what could reasonably have been expected by the applicant.
Overall, I have concluded that the applicant cannot be said to have held a reasonable expectation of privacy in relation to the agency’s supplying her financial records to the police that outweighs the state interest in enforcing the laws relating to welfare fraud. As such the applicant has failed to bring this search within the parameters of section 8 of the Charter [citation omitted].
24[24] The trial judge then turned to s. 7. She observed that her conclusion that the appellant’s reasonable expectation of privacy had not been violated left little room for an argument that s. 7 had been violated. After referring to R. v. White (1999), 1999 689 (SCC), 135 C.C.C. (3d) 257 (S.C.C.), she concluded (at para. 32):
In the present case none of the purposes or concerns against self-incrimination have been brought into play. There was no coercion by the state in obtaining the information at the time it was obtained from the applicant. There is no evidence that the agency had strong suspicions of fraud at the time it obtained the information it did in 1997. At that time there was no criminal process involved or contemplated. There was no adversarial interest between the applicant and the state when the information was first provided. As well, in the circumstances in this case there is no suggestion of an increased risk of unreliable confessions or of an increased risk of abuses of power by the state as a result of the statutory compulsion to provide information pursuant to the Act’s regulatory scheme.
V
25[25] Before considering the merits of the appellant’s submissions, I will address two preliminary matters. The appellant seeks the exclusion of the documents tendered by the Crown at trial. Those documents were the originals of the copies the police obtained from the Department. It is clear, however, that the Crown relied on the copies obtained from the Department in order to subpoena the originals. Without the information in the copies, there would have been no basis upon which to subpoena the originals. If the appellant can successfully establish a Charter breach under s. 7 or s. 8, or both, the admissibility of the originals is properly determined under s. 24(2) of the Charter.
26[26] The second preliminary point concerns the identification of the documents that counsel seeks excluded. At trial, counsel referred to all documents passed on to the police by the Department. Those included documents obtained directly from the appellant by the Department (e.g. T4 slips) and documents obtained by the Department from third parties (e.g. employment records) under the authority of the consent executed by the appellant as a condition to her receiving benefits.
27[27] On appeal, counsel directed his submissions exclusively to the T4 slips obtained from the appellant by Mr. Woo in 1997. Those documents standing alone established that the appellant was employed and making income during the period in which she was receiving benefits on the basis of her representation that she had no income. As I understand counsel’s position, he contends that if his arguments are accepted as they apply to the T4 slips, it would follow that they apply with equal force to the other documents. Equally, if the arguments are rejected as they apply to the T4 slips, they would also fail when applied to the other documents. I think this is an appropriate approach for the purpose of determining the validity of the constitutional claims made by the appellant and will direct my analysis to the T4 slips obtained from the appellant by Mr. Woo and passed on to the police by the Fraud Control Unit.
VI
The Alleged Violation of Section 7
28[28] Section 7 of the Charter states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
29[29] Under s. 7, individuals have the right to not be deprived of their life, liberty or security of the person except in accordance with the principles of fundamental justice: Reference Re Section 94(2) of the Motor Vehicle Act (1985), 1985 81 (SCC), 23 C.C.C. (3d) 289 at 300 (S.C.C.). In R. v. White, supra, at p. 273, Iacobucci J. described the s. 7 analysis in these terms:
Where a court is called upon to determine whether s. 7 has been infringed, the analysis consists of three main stages, in accordance with the structure of the provision. The first question to be resolved is whether there exists a real or imminent deprivation of life, liberty or security of the person, or a combination of these interests. The second stage involves identifying and defining the relevant principle or principles of fundamental justice. Finally, it must be determined whether the deprivation has occurred in accordance with the relevant principle or principles …
30[30] The appellant’s s. 7 claim passes the first stage identified by Iacobucci J. The Crown sought to use the T4 slips obtained from the appellant to assist in the prosecution of the appellant on the charge of fraud.[5] [5] Use of documents obtained from the appellant by the prosecution in a proceeding in which the appellant’s liberty is at risk is sufficient to engage the appellant’s liberty interests under s. 7: R. v. White, supra, at p. 274; R. v. Fitzpatrick (1995), 1995 44 (SCC), 102 C.C.C. (3d) 144 at 152-53 (S.C.C.).
31[31] The second stage referred to by Iacobucci J. in R. v. White, supra, requires the identification and definition of the principle of fundamental justice said to be infringed by the state action. Identification is no problem. The appellant relies on the principle against self-incrimination. That principle is firmly established as among those included in “the principles of fundamental justice” in s. 7 of the Charter: R. v. White, supra, at p. 274; R. v. P.(M.B.) (1994), 1994 125 (SCC), 89 C.C.C. (3d) 289 at 304 (S.C.C.); R. v. S.(R.J.) (1995), 1995 121 (SCC), 96 C.C.C. (3d) 1 (S.C.C.).
32[32] Defining the principle against self-incrimination is a more difficult task. Some manifestations of the principle are so well-established as to warrant separate Charter protection (e.g. s. 11(c), s. 13). The protection afforded an individual against self-incrimination by s. 7 of the Charter, however, cannot be described exhaustively or in the abstract. As Iacobucci J. said in R. v. White, supra, at p. 276:
…The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue.
33[33] The context in which the appellant’s s. 7 claim arises embraces both an alleged state compelled production of material and a subsequent use of that material against the appellant in a criminal proceeding. The appellant contends that she was effectively forced to produce the T4 slips to the Department and that the subsequent use of those documents to prosecute her amounted to a violation of the principle against self-incrimination.
34[34] It is well established that the protection afforded by the principle against self-incrimination can extend to the use in a subsequent proceeding of material previously obtained from an accused by state compulsion: R. v. S.(R.J.), supra. However, not every subsequent use of anything and everything obtained through state compulsion will run afoul of s. 7. The “demands” of the principle against self-incrimination in any given situation must take into account not only the extent to which the rationale underlying the principle is engaged, but also the extent to which other competing fundamentally important societal interests deserve recognition: R. v. White, supra, at p. 276.
35[35] The rationale driving the principle against self-incrimination is as simple as it is important. Where the state alleges wrongdoing, it cannot force the target of that allegation to assist the state in proving the allegation. This rationale reflects the high premium placed on personal autonomy and individual privacy by the principles of fundamental justice. Those principles start from the premise that individuals are entitled to choose whether to co-operate with the state and, if they choose not to, to be left alone by the state. The rationale underlying the principle also reflects the hard learned lessons of history. Conscripted evidence is notoriously unreliable and the line between state compulsion and state abuse can be a fine one.
36[36] The rationale described above addresses those situations in which it can be said that the evidence that the state seeks to use was created by the person against whom the state seeks to use it. Statements, oral or written, are created by the author and any subsequent attempt to use those statements against the author effectively conscripts the author into the prosecution army. The protection against self-incrimination as one of the principles of fundamental justice has also been extended to protect an accused against subsequent use of any evidence that could not have been obtained by the state but for a compelled statement or testimony given by the accused: R. v. S.(R.J.), supra.
37[37] Documents that exist prior to, and independent of, any state compulsion do not, however, constitute evidence “created” by the person required to produce those documents. With certain narrow exceptions, neither the compelled production of such documents, nor the subsequent use in a criminal proceeding of such documents, attracts the protection of the principle against self-incrimination: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) (1990), 1990 135 (SCC), 54 C.C.C. (3d) 417, per Sopinka J. at pp. 554-56, per L’Heureux-Dubé J. at pp. 538-39; British Columbia Securities Commission v. Branch (1995), 1995 142 (SCC), 97 C.C.C. (3d) 505 at 524-25 (S.C.C.); R. v. Fitzpatrick, supra, at pp. 154-55; R. v. Jarvis (2000), 2000 ABCA 304, 149 C.C.C. (3d) 498 at 510-13 (Alta. C.A.), leave to appeal to S.C.C. granted [2001] S.C.C.A. No. 86.
38[38] British Columbia Securities Commission v. Branch, supra, is the leading authority. In that case, the appellants argued that provincial securities legislation requiring them to produce certain corporate documents to securities investigators contravened their right against self-incrimination in a manner that was inconsistent with s. 7 of the Charter. Sopinka J. and Iacobucci J., who jointly wrote for the majority, drew a clear distinction between the compelled production of communications brought into existence through state compulsion and documents that were independent of any such compulsion. They said at pp. 524-55:
The rationale both at common law and under s. 7 of the Charter for these principles is that in certain circumstances compellability would impinge on the right to silence. This right, however, attaches to communications that are brought into existence by the exercise of compulsion by the state and not to documents that contain communications made before such compulsion and independently thereof. The participation of the compelled witness in the process of production is a relevant consideration, in so far as the state may lack alternate means of acquiring the information. This is a distinction that is well recognized in our law and is applied generally to the rules of privilege. …
We know of no instance in which it was suggested that the common law right of silence which protected communications by a suspect to the police extended to documents of a suspect. [Emphasis added.]
39[39] In a concurring judgment, L’Heureux-Dubé J. wrote at pp. 542-43:
A clear line must be drawn between, on one hand, the compelled production of pre-existing documents and, on the other hand, the compelled production of documents, which are themselves produced pursuant to a statutory compulsion. While the latter may, indeed, engage some self-incriminatory concerns since the individual will have generated them under state compulsion, it is evident that the former should not engage such concerns since they have not been generated subject to any such compulsion.
40[40] Sopinka J. and Iacobucci J. also recognized that documents created under an obligation imposed by statute could attract the protection against self-incrimination. This was confirmed in R. v. Fitzpatrick, supra, where the relevant statute required that the accused keep the records which the prosecution sought to use against him.
41[41] Sopinka J. and Iacobucci J. also acknowledged that there were situations in which the possession of a document had a communicative component, as for example where that possession was relied on to prove that the possessor had knowledge of the contents of the document. In their view, where production had a communicative aspect, production of the document and any use of it in subsequent proceedings should be approached in the same way as compelled testimony or statements: British Columbia Securities Commission v. Branch, supra, at pp. 525-26.
42[42] The T4 slips produced to Mr. Woo by the appellant were created prior to, and entirely independent of, any compulsion that the Department may have exerted upon the appellant to produce those documents. The appellant was not under any statutory compulsion to create, or even keep, the T4 slips. Indeed, the appellant did not create the T4 slips but received a copy from her employer. Even if it could be said that the state compelled the appellant to produce the T4 slips, the T4 slips did not constitute evidence created by or emanating from the appellant. The T4 slips existed entirely independent of the appellant. Production of them to the Department did not constitute self-incrimination. The subsequent use of the T4 slips also did not implicate the principle against self-incrimination. The prosecution did not seek to use possession of the T4 slips by the appellant for any communicative purpose, such as to prove knowledge or to imply an admission against interest. The documents spoke for themselves and constituted evidence of employment income.
43[43] My conclusion that documents that exist prior to, and independently of, any state compulsion do not fall under the protection of the principle against self-incrimination (even if a person is legally compelled to produce those documents to the state) may be seen as inconsistent with the judgments of the British Columbia Court of Appeal in R. v. Ling (2000), 2000 BCCA 562, 149 C.C.C. (3d) 127 (B.C.C.A), leave to appeal to S.C.C. granted [2000], S.C.C.A. No. 634; and R. v. Wilder (2000), 2000 BCCA 29, 142 C.C.C. (3d) 418 (B.C.C.A.), leave to appeal to S.C.C. dismissed [2000], S.C.C.A. No. 279.
44[44] In neither case did the British Columbia Court of Appeal address the distinction between, on the one hand, the compelled production of pre-existing documents that exist independent of any state compulsion and, on the other hand, compelled communications or the compelled production of documents created under statutory obligation. Similarly, neither case refers to the passages from British Columbia Securities Commission v. Branch, supra, that I have quoted above. Rather, the court in each case proceeded directly to a review of the factors that must be balanced in deciding whether the compelled production or subsequent use of the documents violates s. 7 of the Charter.
45[45] In my view, there is no inconsistency between R. v. Ling, supra, and R. v. Wilder, supra, and my analysis in this case. The court in R. v. Ling, supra, and R. v. Wilder, supra, ultimately held that s. 7 did not protect against the subsequent use of any of the documents that the accused had been compelled to produce. That conclusion made it unnecessary for the court to consider the distinction drawn in British Columbia Securities Commission v. Branch, supra, and relied on in these reasons.
46[46] I am satisfied that the s. 7 claim fails because the rationale underlying the principle against self-incrimination does not reach the production or subsequent use by the state of the appellant’s T4 slips. It is unnecessary for me to consider whether, in the context of this case, the use of the T4 slips in a criminal prosecution constitutes self-incrimination that does not accord with the principles of fundamental justice. For completeness, however, I will briefly address the relevant factors identified in R. v. Fitzpatrick, supra, and R. v. White, supra.
47[47] As Iacobucci J. said in R. v. White, supra, at pp. 276-77, even if the principle against self-incrimination is engaged, other competing fundamental principles of justice must also be considered and weighed against the principle of self-incrimination to decide whether there is a breach of s. 7. He observed that a criminal prosecution is a search for the truth, and that it is a principle of fundamental justice that relevant evidence should be available to the trier of fact. This principle stands in opposition to the principle against self-incrimination, which has the effect of excluding relevant evidence. The force of these competing principles can be assessed only in the context of a particular fact situation. R. v. White, supra, and R. v. Fitzpatrick, supra, identified four factors which are germane to that contextual analysis.
48[48] The first factor is the degree of state coercion involved in the production of the statement or documents. In R. v. White, supra, and R. v. Fitzpatrick, supra, the accused faced penal consequences if they refused to provide the statement (R. v. White) or keep and produce the records (R. v. Fitzpatrick). The appellant did not face any penal consequences if she refused to produce the T4 slips. She did face termination of her benefits, since without the documentation the Department could not determine her continued eligibility for those benefits. The appellant did not have an unqualified right to receive benefits. She was entitled to benefits only as long as she was eligible for them and only to the degree that she was eligible for them. The Department could not give benefits to a person who did not qualify for them. In my view, the Department’s refusal to continue benefits when it could not determine whether the appellant was statutorily entitled to the benefits cannot amount to any form of state compulsion. Put somewhat differently, the requirement that a person establish his or her entitlement to public funds cannot be characterized as coercive state conduct.
49[49] I also reject the contention that the appellant’s financial need can somehow amount to a form of state compulsion. While governmental aid to those in genuine need is widely regarded as good public policy, I do not think that can be taken as meaning that the state is responsible for the existence of that genuine financial need and, therefore, compels any actions precipitated by that need.
50[50] The second factor identified in R. v. White, supra, and R. v. Fitzpatrick, supra, is the nature of the relationship when self-incriminatory statements or documents are produced. The trial judge found that there was not an adversarial relationship between the appellant and the Department when she produced the T4 slips. I accept this finding. While criminal prosecution was a possibility, there was no criminal investigation underway. The T4 slips were requested and produced in the context of a relationship in which the appellant had committed to full disclosure of such material in exchange for eligibility for public funds. The production of T4 slips to Mr. Woo was an integral part of the proper administration of the benefits program.
51[51] The third factor identified in the cases is the risk inherent in unreliable confessions. This factor does not assist the appellant. The T4 slips are not confessional in any sense of the word. Indeed, the appellant has nothing to do with the creation of the document. The potential use of the T4 slips in criminal proceedings against the appellant could have no effect on the accuracy of the information contained in those slips. The description of the T4 slips as confessional is so clearly inappropriate that it demonstrates that the characterization of the production or use of these documents as self incriminating is misconceived.
52[52] The final factor identified in R. v. White, supra, and R. v. Fitzpatrick, supra, is the concern that the use of compelled statements or documents could increase the likelihood of abusive state conduct. In the circumstances of this case, concerns about abusive state conduct turn in large measure on whether the appellant had any reasonable expectation that the Department would not provide the T4 slips to the police in aid of a criminal prosecution. I will address that consideration when I reach s. 8 of the Charter. For s. 7 purposes, I merely say that I see no risk of abuse in this case. The T4 slips related directly to the appellant’s continued eligibility for benefits. There is no suggestion that Mr. Woo’s request for those documents was other than a reasonable one made in the normal course of the administration of the benefits program. Nor, in my view, can it be said to be abusive when the Department, having determined that the appellant had apparently defrauded it of a large amount of public funds, turned the documents over to the agency responsible for fraud prosecutions. To hold that this conduct is abusive is to hold that agencies charged with the responsibility of dispensing public money are in a different and much worse position than all other victims of apparently fraudulent conduct.
VII
The Alleged Violation of Section 8
53[53] In holding that the production of the T4 slips and their subsequent use in the criminal prosecution does not amount to self-incrimination and thereby engage s. 7 of the Charter, I do not suggest that the Charter has no application. As British Columbia Securities Commission v. Branch, supra, demonstrates, compelled production of such documents attracts scrutiny under s. 8 of the Charter. I turn now to the s. 8 claim made by the appellant.
54[54] Section 8 of the Charter states:
Everyone has the right to be secure against unreasonable search or seizure.
55[55] Section 8 protects reasonable expectations of privacy from unreasonable state intrusion: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 at 457-58 (S.C.C.). A s. 8 claim raises two related questions. First, does the state action interfere with the individual’s reasonable expectation of privacy, and second, if it does, is that interference unreasonable? R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 at 140; R. v. Nicolosi (1998), 1998 2006 (ON CA), 40 O.R. (3d) 417 at 433-34 (C.A.).
56[56] The appellant acknowledges that she had no reasonable expectation of privacy in so far as the T4 slips were used by the Department to determine eligibility for benefits, or to prosecute her for a breach of the relevant provincial statute. She contends, however, that she could reasonably expect that the T4 slips would not be turned over to the police for purposes of a criminal prosecution. She argues that when the police took possession of the documents, they seized them and that the seizure was an unreasonable interference with her privacy.
57[57] Like the trial judge, I accept the premise underlying the appellant’s submission. A reasonable expectation of privacy is not an all or nothing thing. A state search or seizure conducted for one purpose may not interfere with reasonable expectations of privacy, but the same state conduct motivated by a different purpose may interfere with reasonable expectations of privacy: R. v. Colarusso, 1994 134 (SCC), [1994] 1 S.C.R. 20; R. v. Nicolosi, supra. It is, therefore, not determinative of the appellant’s s. 8 claim that she had no reasonable expectation that the Department would not use the T4 slips for regulatory purposes. Nor, however, does it automatically follow that the use of the T4 slips in a criminal prosecution interfered with the appellant’s reasonable expectation of privacy. As the trial judge correctly observed, the existence of a reasonable expectation of privacy must be determined by a consideration of the totality of the circumstances. The state purpose behind the search or seizure is one of those circumstances.
58[58] The appellant’s s. 8 claim turns on whether the use of the documents in a criminal prosecution went beyond what the appellant could reasonably expect should the Department determine that she had misrepresented her entitlement to benefits. In many contexts, the difference between regulatory enforcement and resort to the criminal process has important constitutional consequences. I do not think, however, that the distinction is significant in assessing the appellant’s reasonable expectations of privacy in this context.
59[59] The appellant applied for benefits under the Act. In exchange for the receipt of those benefits, she undertook to make full, accurate and ongoing disclosure of her income. She knew that this obligation included the production of documents relevant to her income if requested by the Department. The application signed by the appellant contained a clear notice that obtaining benefits by dishonest means constituted the crime of fraud.
60[60] In his submissions, counsel for the appellant acknowledged that, had the Department prosecuted the appellant under the Act for knowingly obtaining a benefit to which she was not entitled, the appellant could have no reasonable expectation that the Department would not use the T4 slips to prove the violation of the Act. A fraud charge under the Criminal Code amounts to the same allegation and reflects only a difference in degree, and not a qualitative change, in the nature of the state conduct. A prosecution under the Act or a prosecution under the Criminal Code for fraud is a prosecution for a fraudulent receipt of benefits. The latter simply indicates a more serious level of fraudulent conduct. Resort to either is part and parcel of the administration and enforcement of the Act. The mere fact that the state regards the appellant’s conduct as sufficiently egregious to warrant criminal prosecution does not enhance the appellant’s privacy expectations. No reasonable person in the appellant’s position could expect that material provided to the Department would not be used in proceedings involving allegations of the fraudulent receipt of benefits. In my view, whether those proceedings occurred in provincial offences court, or in criminal court, is of no consequence to the assessment of the existence of any reasonable expectation of privacy.
61[61] I accept the respondent’s submission that the use of the T4 slips in the criminal prosecution for the fraudulent receipt of benefits did not amount to the use of the document for a purpose different from the enforcement of the Act. The prosecution for fraud, just like a prosecution under the Act, was aimed at preserving the integrity of a benefits program that depended largely on accurate self-reporting of income. Self-reporting can only work if the state can identify and successfully prosecute those who do not honour their obligation to report fully and accurately.
62[62] Like the trial judge, I am satisfied that the appellant could have no reasonable expectation that the Department would not co-operate in the criminal prosecution of an allegation of fraud against the Department. The appellant could have no reasonable expectation that the Department would not provide the T4 slips to the prosecutorial authorities, including the police.
63[63] That, of course, does not mean that the Department was free to share the documents obtained from the appellant with the police or other state agencies for any and all purposes associated with the enforcement of the criminal law or other regulatory schemes. Had the Department turned the T4 slips over to the police in aid of a prosecution that had nothing to do with the enforcement of the Act, the assessment of the appellant’s privacy expectations may have been different. That situation must be addressed when and if it arises.
64[64] Before leaving the s. 8 claim, I add one further observation. Although my analysis borrows heavily from that of the trial judge, I would avoid any suggestion that the appellant consented to the taking of the documents by the police for the purpose of a fraud prosecution. Consent in this context connotes a waiver of s. 8 rights. As explained in R. v. Wills (1992), 1992 2780 (ON CA), 70 C.C.C. (3d) 529 at 541-42 (Ont. C.A.), and R. v. Borden (1994), 1994 63 (SCC), 92 C.C.C. (3d) 404 at 416-17 (S.C.C.), a waiver of s. 8 rights is a voluntary and informed consent to a state intrusion upon a person’s reasonable expectation of privacy. Waiver becomes relevant only where state conduct intrudes upon a reasonable expectation of privacy. If there is no such expectation, there is nothing to waive.
65[65] As I am satisfied that the appellant’s s. 8 claim fails at the threshold level of whether a reasonable expectation of privacy exists, I never reach the question of waiver by consent. While I would not think that the release signed by the appellant (supra, para. 11) could meet the high standard required for waiver of a constitutional right, it is still one important feature of the relationship between the appellant and the Department. It is that relationship which is crucial to my determination that the appellant could have no reasonable expectation that the T4 slips would not be provided to the police for the purpose of prosecuting an allegation of fraud against the Department.
VIII
The Sentence Appeal
66[66] There are two issues raised on the sentence appeal. The appellant submits that the trial judge should have imposed a conditional sentence instead of a period of incarceration, and that the trial judge should not have required the appellant to pay $100 a month by way of restitution to the Department as a term of the probation order.
67[67] The appellant defrauded the Department over a two-year period of some $14,000 to fund her twenty year-old daughter’s attendance at a professional dance school in Germany. The appellant testified at the sentencing. She completed her examination-in-chief with the following statement:
Well, I just believe that every child does have a right to the best education that they can get; and yes, I did work; I received benefits to pay for my daughter’s education, and I think there needs to be provisions in the law to permit single mothers to work and receive benefits in order to pay for their children’s education.
68[68] In cross-examination, the appellant was asked whether she would do the same thing if she had it to do all over again. She responded:
Well, in those circumstances, I would do the same thing, meaning that, yes, I would try and get money for my daughter to send her to school. If I had a higher paying job then I could support myself and wouldn’t do the same thing, but that’s not what happened.
69[69] As often happens in cases involving welfare fraud, the trial judge had a difficult sentencing decision. The appellant had no criminal record 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 one and she has worked hard to provide for herself and her daughter. However, the fraud was serious. The appellant systematically defrauded the Department of a substantial amount of money over a long period of time, to fund, what many would regard as an extravagance. In doing so, she took money that properly should have gone to others and no doubt damaged the appearance of the integrity of the benefits program and fed the prejudices of those who see every benefit program as a breeding ground for “welfare bums”.
70[70] Counsel at trial made strong arguments in favour of their respective positions. Those arguments were renewed and repeated on appeal. In her careful reasons, the trial judge reviewed those arguments, the relevant sentencing principles, and the case law. She ultimately concluded that a proper expression of the principles of general and specific deterrence precluded a conditional sentence and required a period of incarceration, albeit one that allowed the appellant to serve her term of imprisonment intermittently. In coming to that conclusion, the trial judge emphasized what she characterized as the appellant’s “open and unrepentant disrespect for the law”. In the trial judge’s assessment, this attitude made specific deterrence particularly important in the sentencing process.
71[71] The appellant’s evidence supported the trial judge’s assessment of her attitude towards the law. In her evidence, the appellant made it clear that she was prepared to operate on the basis that the ends justified the means. She believed that her daughter was entitled to “the best education” that she could get and if that education could not be funded within the limits of the law, the appellant was prepared to break the law to get the money from the public purse. The appellant’s testimony provides no reason to think that she would not make the same decision if faced with another situation in which, in her view, the government did not adequately meet her financial needs. Not only is this attitude patently wrongheaded, it does serious harm to others who must look to the government for financial assistance. Benefit programs like the one provided under the Act could not function as self-reporting programs, and could well cease to exist at all, if applicants generally believed, as the appellant does, that it was appropriate to misrepresent the facts if, on the true facts, the program did not provide what an applicant regarded as adequate funding.
72[72] The reasons of the trial judge reveal no error in principle and no misapprehension of the relevant evidence. There is no basis upon which this court can interfere with her conclusion that a short period of intermittent incarceration was necessary.
73[73] The trial judge imposed a free-standing restitution order as well as requiring the appellant to pay $100 a month towards that restitution order as a term of the probation. The appellant has very limited means. Her counsel submitted that if the appellant was required to make monthly payments of more than a “very modest amount”, there was a real danger that she would be unable to pay reasonable living expenses and her rent. Crown counsel did not suggest that the probation order should include a term requiring payments against the free-standing restitution order.
74[74] In the circumstances, I think the trial judge erred in requiring the appellant to pay $100 a month towards the restitution order as part of her probation term. Given the appellant’s very limited financial means and the position of the Crown at trial, that term served no useful sentencing purpose. The Department’s interests in recovering the owed amount was adequately addressed by the restitution order. I would delete the term of the probation order requiring the appellant to pay $100 a month toward the restitution order.
IX
75[75] For the reasons set out above, I would dismiss the conviction appeal and would allow the sentence appeal in part by deleting the requirement that the appellant pay $100 a month towards the restitution order during the term of the probation.
RELEASED: “JJC”
“AUG 13 2002”
“Doherty J.A.”
“I agree J.J. Carthy J.A.”
“I agree John Laskin J.A.”
1[1] The trial judge’s reasons with respect to the appellant’s Charter application are reported at [2000] O.J. 5122.
2[2] The General Welfare Assistance Act was repealed and replaced by the Ontario Works Act, 1997, S.O. 1997, c. 25, Schedule A, effective May 1998.
3[3] In the appellant’s factum it is said that there is no evidence that the appellant signed the application. The caseworker who took the application was not available to testify and there was no direct evidence that the appellant signed the application. It was conceded, however, that the appellant applied for assistance on the date set out in the application bearing her name. In the absence of any evidence to the contrary, there was ample circumstantial evidence that the appellant signed the application.
4[4] Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, s. 32(g); Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 42(g).
5[5] The prosecution “used” the copies of the T4 slips as a basis for subpoenaing the originals.
