Court File and Parties

ONTARIO COURT OF JUSTICE DATE: June 15, 2022 COURT FILE No.: 17-3377

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MARYAH CAPRI

Before: Justice Angela L. McLeod

Convicted after trial: December 20, 2019 Sentencing hearing: March 28, 2022

Counsel: Hannieh Azimi..................................................................................... counsel for the Crown Chuck Syme.................................................................................... counsel for the accused

McLeod J.:

Overview

1Ms. Capri’s fraud was prolonged and multi-faceted. As noted in the trial judgment of this court:

• Ms. Capri applied for and received social assistance through the Ontario Works Program between 2012 and 2016.
• She received $104,387.05. The Crown asserted that she was entitled to none of the funds.
• She claimed to be a single parent at all material times and not to be receiving any support from the children’s fathers; one of whom she claimed lived out of the country.
• She claimed that the father of her son Kyle Capri (2002) was Collin Morgan, the father of her youngest children, Sophia Capri (2009), Salem Abdi (2010), Navyah Abdi (2012) was Ibraham (the spelling of this name varies throughout the documentation, and he is also known as Abe) Abdi. A fifth child named Jaydan Morgan, the eldest, lived with Collin Morgan, until recently.
• She initially applied for assistance in March 2012 and completed the requisite application process and forms. These forms were renewed regularly thereafter, including the forms outlining that she must report any changes to her financial circumstances.
• She consistently claimed that she was not receiving any financial support from the children’s fathers. At all times she claimed to be a sole support parent.

2At trial, I found as a fact:

• that Ms. Capri and Hamdi Hassan Abdi were married in November 2011.
• that Ms. Capri listed Hamdi Abdi as the father of Sophia, Salem and Navyah on all school records.
• that Ms. Capri was living at 22 Rogers Trail, Bradford, at the same time as one or both of Hamdi and Ibraham Abdi.
• that Ms. Capri was living at 9 Lynn Street, Bradford, at the same time as Ibraham Abdi.
• that Ms. Capri was living at 150 Gardiner Street, Bradford, at the same time as both Ibraham and Hamdi Abdi.
• that Ms. Capri was living at 1297 Leslie Street, Innisfil, at the same time as both Ibraham and Hamdi Abdi.
• that the landlord made reference to in Exhibit #6 as Mr. Hamdi Hassan, signed as Hamdi Abdi, is one in the same, and is the father of the children, and her spouse, Hamdi Hassan Abdi.

Circumstances of the Offender

3A presentence report was filed as Exhibit #1. Therein contained the criminal record of Ms. Capri. She has convictions for failing to comply with probation, failing to comply with recognizance, failing to attend court and obstruct peace officer. Her convictions are dated but are related and were not dated at the time of the beginning of the offence for which she is now sentenced.

4Three reports, authored by Dr. Murphy (Forensic Psychotherapist) were filed as composite Exhibit # 2. Those reports were amplified by the viva voce evidence of Dr. Murphy. His reports echo much of what is contained in the presentence report and can be summarized as follows:

(1) Ms. Capri had a difficult childhood, she was raised in a home negatived by alcohol and drug abuse, domestic violence, infidelity, her mother’s prostitution and a general lack of parental guidance. (2) Ms. Capri has five children, aged 9, 11, 12, 19 and 22. She remains in a duplex with separate units that her ex-husband owns and resides within. (3) Ms. Capri has alcohol and drug abuse issues, as well as a number of other mental health issues. She has endured much trauma in her life. (4) She has been engaged in therapy with Dr. Murphy on and off over the past near 5 years, between September 2017 and August 2018, then February to March 2020, and lastly between September 2021 and March 2022. She has a history of cancelling and missing her appointments and of lying to her therapist. He has spent a great deal of their time together attempting to establish a repour and to reconnecting after disconnecting. (5) Dr. Murphy testified that Ms. Capri is an adult child of alcoholics. He opines that she is affected by symptoms related to pervasive childhood trauma. She presents with “antisocial, histrionic and borderline personality traits and behaviours, in the context of a history of pervasive childhood trauma, a dissociative disorder and substance use disorder.” (6) She has “external locus of control, believing that her life is controlled by external events. Therefore, she has difficulty taking charge of her own life and has a tendency to blame others for her own actions.” (7) Dr. Murphy opines that “these behaviours will resolve [when] Ms. Capri resolves the substance use disorder, undergoes treatment for unresolved psychological trauma and achieves sobriety.” (8) Ms. Capri advised the presentence author that she believes that she is only responsible for $19,000, rather than the $104,387.05 that this court found as a fact was her over payment.

Position of the Parties

5The Crown seeks a custodial sentence in the range of 6-9 months, followed by 15- 18 months probation, and a prohibition order under section 380.2 of the Criminal Code.

6The defence seeks a conditional sentence order in the upper reformatory range and is opposed to the prohibition order. The defence advised the court that Ms. Capri made an initial restitution payment of $15,000 3 days prior to the sentencing hearing. The defence submits that the delay in this case does not fall at the feet of Ms. Capri.

Analysis

Sentencing Principles

1The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

a denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) deterring the offender and others from committing crimes; (c) separating offenders from society where necessary; (d) assisting in the rehabilitation of the offender; (e) providing reparations for harm done to the victim or to the community; (f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

2The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Conditional Sentence Order – Law and General Principles

7Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and, (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

8The first three criteria establish whether a CSO is available; the last whether it is appropriate.

9A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

10Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.) (1997), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).

Conclusion

11While a conditional sentence is available in this matter, I find that it is not appropriate and would not meet the fundamental sentencing principles. The fraud was long lasting, multi-faceted and complex. The amount exceeds $100,000. The offence took place consistently and constantly over a 5 year period.

12In these circumstances the principles of denunciation cannot be met by the imposition of a CSO. Additionally, given Ms. Capri’s ongoing defence of her actions and refusal to accept the full amount of the fraud, the principle of specific deterrence is only met by a ‘brick and mortar’ jail sentence.

13Furthermore, given the inability to stay connected to the therapeutic process and the inability to maintain sobriety, I am not confident that Ms. Capri would comply. The safety of the community cannot be assured.

14Ms. Capri is sentenced to 180 days custody to be followed by 36 months probation focusing predominantly on rehabilitation and restitution. The Crown’s request for a prohibition pursuant to section 380.2 of the Criminal Code is denied. To impose this restriction would disable Ms. Capri from gaining remunerative employment.