His Majesty the King (Workplace Safety and Insurance Board) v. Maharaj, 2023 ONCJ 246

minicounsel

DATE: March 20, 2023 Court File No.: 4860-999-17-102432

ONTARIO COURT OF JUSTICE (Toronto Region)

BETWEEN:

HIS MAJESTY THE KING (WORKPLACE SAFETY AND INSURANCE BOARD)

ROBIN MAHARAJ

Counsel: Ms. Allison Brar (Lee) Workplace Safety and Insurance Board Legal Services Division

Defence Counsel for the Defendant: Peter Kott Barrister & Solicitor

M. Fernandez, J.P.:-

Background

1On November 17, 2022, I delivered my Reasons for Judgment with respect to the matter WSIB v. Robin Maharaj. I found Mr. Maharaj guilty on ten counts: 2, 6 to 9 and 11 to 15.

2Section 158 (1) of the Workplace Safety and Insurance Act (WSIA) states that an individual who is convicted of an offence is liable to a fine not exceeding $25,000 or to imprisonment not exceeding six months or to both.

3In Canada, regulatory requirements are set by various legislatures to provide protection to the public and the Supreme Court of Canada has recognized the importance of maintaining these regulations to a high standard. With specific reference to the regulations in the WSIA, they were established to protect injured workers and provide benefits to them when they are unable to return to work. Section 149(1) of the WSIA was established to hold a high standard to the importance of the regulations within the Workplace Safety and Insurance Board (Board). The regulations were also established to address the wrongful conduct of those individuals who intentionally misrepresent themselves to gain benefits they would otherwise not be eligible to receive.

4It is the responsibility of this Court to consider the impact of the effectiveness of a breach in any regulatory scheme. Breaches, which include a high degree of moral blameworthiness directly affect the prescribed standards of care to promote the protection and benefit of workers. Further, it is very common that incarceration be considered for convictions that follow such breaches. The Supreme Court of Canada stated the following:

The potential for serious harm flowing from the breach of regulatory measures is too great for it to be said that imprisonment can never be imposed as a sanction. [1]

5Section 149(1) of the WSIA provides that the burden for the prosecution to prove both the actus reus and the mens rea of each offence. The mens rea component of an offence goes directly to the mind of the offender in addition to the prohibited act. The penalty for this offence is intensified because the offence requires proof of premeditative wrongful acts meant to intentionally mislead that reflect the increased moral blameworthiness of the offender. The Court of Appeal in R. v. New Mex Canada Inc., 2019 ONCA 30 at para. 60 is clear: “where the moral blameworthiness of a particular offender increases, so too can the penalty imposed.”

General Principles of Regulatory Sentencing

6The principles of sentencing for regulatory offences all originate in common law. Unlike the Criminal Code of Canada, RSC 1985, c C-46 there are no sentencing principles or guidelines in the Provincial Offences Act, RSO 1990, c. P33 [2]. Further, while the Supreme Court of Canada stated that “incarceration is rarely imposed” for regulatory offences, this not a principle of sentencing [3].

7Since the Provincial Offences Act does not include any sentencing principles, it is customary to consider them in the criminal law context. The purpose of sentencing is outlined in s. 718 of the Criminal Code of Canada:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (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 or to the community.

8Section 380.1(1) (a) of the Criminal Code of Canada provides additional aggravating factors for fraud cases:

380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances:

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

9The goals or objectives of sentencing that apply to all offences include general and specific deterrence, rehabilitation, and protection of the public. The Court of Appeal in New Mex Canada identified consideration be given to deterrence, proportionality, and parity for principles of regulatory sentencing.

10General deterrence involves deterring the public generally from committing the offence. It is the most important sentencing goal for most regulatory offences [4]. Specific deterrence involves deterring the specific offender before the court from committing the offence again.

11With regards to proportionality, the sentence imposed must bear some relationship to the offence and must be a ‘fit’ sentence proportionate to the seriousness of the offence. In R. v. C.A.M. (1996), [1996] 2 S.C.R. 275 at para. 40, the Supreme Court expressed as a requirement that “the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender”. In the Criminal Code of Canada context, the fundamental principle of sentencing requires that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: See s. 718.1 of the Criminal Code of Canada.

12In sentencing for multiple offences, the totality principle requires the sentence for each particular offence, when analyzed alone, to be less than proportional to its gravity and the offender’s degree of responsibility. In such cases, “it is the totality of all the sentences that must satisfy the proportionality requirement.” [5]

13Parity is a factor for the Court to consider when deciding the amount of fine or length of incarceration. The sentence imposed should reflect similar sentences on similar offenders for offences committed in similar circumstances. This factor is important because it takes into consideration that the sentence imposed are not “demonstrably unfit” and promotes the “equal and objective treatment of offenders” [6].

Applying the Sentencing Principles to this Case

General Deterrence

14I have found Mr. Maharaj guilty of ten mens rea offences under the WSIA. As an executive officer of 2156213 Ontario Inc., Mr. Maharaj received benefits from fraudulent claims with the WSIB that he was not entitled to receive. In an elaborate scheme over a span of four years, he defrauded the WSIB of over $100,000. This is an amount that would have otherwise gone to injured workers.

15With respect to general deterrence, the Prosecution is asking for a period of incarceration for Mr. Maharaj as the relevant circumstances support the sentence. A custodial sentence will send a message as a warning of the consequences an individual will face when they knowingly falsify claims and documents to gain benefits they are otherwise not entitled to receive. Further, it also sends a message or warning to executive officers who act in the same manner as Mr. Maharaj.

16The case before me is quite similar to R. v. Virk, 2002 ONCJ 410 as summarized below:

Mr. Virk faced charges under the Workplace Safety and Insurance Act of making a false statement and failing to inform of a material change in circumstances. Mr. Virk, a welder, had been injured and filed a claim for benefits. However, he worked under a different name while receiving benefits. Mr. Virk appealed the decision of the WSIB when his benefits were cut off, stating that he was not working. At trial, he further denied working. He told the Court that he was unemployed and lived with his wife and children in a basement apartment and still suffered from the injury in his claim. Mr. Virk received $33,596 in payments for which he was not eligible. Mr. Virk was found guilty and was sentenced to five months of incarceration, ordered to pay restitution of $33,596 and probation for two years. It was noted that these were serious offences with a high level of moral blameworthiness.

17I agree with my colleague Justice of the Peace Madigan when he held in Virk that convictions under s. 149(1) and s.149(2) are gravely concerning, that they may well be tantamount to criminal fraud charges. As in Virk, Mr. Maharaj’s fraudulent scheme was committed to benefit himself and “although directed towards the provincial government, the actual “owners” of the fund are its intended beneficiaries who are injured like the Defendant. To defraud the fund is to defraud his fellow injured workers” [7].

18I also agree with my colleague Justice of the Peace Shousterman, who addressed a serious, five-year ongoing provincial tax fraud matter in Ontario (Ministry of Finance) v. 1375923 Ont. Inc. (c.o.b. Le Jardin Banquet and Conference Centre Inc.), 2019 ONCJ 547, and her sentence at 2020 ONCJ 126, which was upheld by Justice E. Prutschi at 2022 ONCJ 277, leave to the Ontario Court of Appeal denied. In Her Worship’s sentencing judgment, at para. 113, she made reference to the provincial government as being the victim of fraud.

19I find as an aggravating factor that Mr. Maharaj pre-meditated the scheme over four years, misleading or misrepresenting himself to Board members as a worker, although having registered as an executive owner. Further aggravating is that Mr. Maharaj has a track record for fraud, having been criminally convicted of Fraud Over $5000 on February 4, 2020, and spent six months in custody [8]. This shows a propensity to disregard the law for personal gain. The Court in R. v. Roussy at para. 5, stated the following in using the term deterrence:

The deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. A sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.

A period of incarceration is required in the circumstances to affect general deterrence in this case. A sentence of incarceration will justify the means of “emphasizing” to the community the disapproval of this act and “branding it as reprehensible”.

Specific Deterrence

20Mr. Maharaj has a high propensity and a pattern of behaviour to commit offences, as it is evident in his criminal record and dealings with the WSIB. He has a criminal record dating back to 1984, with his last conviction of Fraud Over $5000 in February 2020 (See Exhibit #1 on Sentencing). It is noted here that Section 22.1 of the Evidence Act (Ontario), RSO 1990, c. E23 permits me to consider his criminal record in this proceeding. Further, Mr. Maharaj has spent time in custody, has taken no ownership of the offences committed and has not demonstrated any remorse to this Court.

21Specific deterrence is a live factor for this Court to consider, particularly because of the past behaviour of Mr. Maharaj’s dealings with the police, lying to them on several occasions as was heard during his trial. He lied to the WSIB and continued to do so for four years. The instances of deceit were numerous and for this reason he was charged with nineteen counts, of which he was convicted of ten.

22Aggravating is that the charges he is convicted of are categorized as mens rea. This is an elevated category in comparison to an absolute or strict liability offence. As stated by the Ontario Court of Appeal by Justice Pardu in R. v. Curtis, 2018 ONCA 441 at para. 10:

The use of the word "wilfully" in the statutory text is important and signifies a legislative intention to create a true criminal offence "in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence": R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 at para. 60. The term "wilfully" is a term of art usually used to express a mens rea requirement that "stresses intention in relation to the achievement of a purpose": R. v. Docherty, [1989] 2 S.C.R. 941 at para. 13.

23Mr. Maharaj had never told the Board of his true identity and continued to mislead the Board members in filing claims as a worker. He knowingly caused the board, through a pre-meditated scheme, to believe he was a worker until the Board realized otherwise and subsequently stopped his payments. This behaviour goes directly to the seriousness of the offences, the reason it is categorized as such and consequently carries a high level of culpability. In essence, the offences Mr. Maharaj committed involve a high degree of moral blameworthiness or fault and a very different approach to sentencing is necessary compared to a strict or absolute liability offence.

24Further aggravating is that Mr. Maharaj continued the pre-meditated scheme of misleading the Board over the course of four years in two claims. Failing to disclose his status as an executive officer, while using aliases, he collected $104,234.30 in loss of earnings that would have otherwise gone to injured workers. In particular, I rely upon the distinction made in R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287 (Ont. C.A.), at para. 295, about the moral dimension in acting contrary to the public good.

25Lastly, as an aggravating factor, Mr. Maharaj’s criminal record dates back to 1984, his first criminal conviction of Fraud, where he received a suspended sentence and probation for eighteen months. His criminal record is lengthy, with breaches of court orders, theft, and possession of stolen property – offences that plumet the degree of trustworthiness and questions his character as a responsible law-abiding individual. Most recently, Mr. Maharaj was once again convicted for Fraud, this time for an amount over $5000, and on February 4th, 2020, he received a suspended sentence and probation for two years, having spent six months in pretrial custody. Mr. Maharaj is no stranger to the court system and his criminal record has very few gaps, which elevates the need for specific deterrence and denunciation.

26The only mitigating factor is that this is Mr. Maharaj’s first conviction under a regulatory offence, however, that is overshadowed by his lengthy criminal record. Further, his impact on the WSIB and the convictions under the WSIA undermine the purpose of why these regulatory offences exist – to uphold injured workers to a lawful standard of benefiting them with payments when they are unable to work and to bring to justice those that wilfully defraud the system. Mr. Maharaj’s behaviour with the WSIB severely impacted the fundamental mandate of the WSIB’s purpose. It is therefore required under specific deterrence that Mr. Maharaj be sentenced to incarceration in order for him to discontinue his behaviour.

Proportionality

27The principle of proportionality “expresses itself as a constitutional obligation”. A sentence that is grossly disproportionate that it gives rise to the outrage “standard of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Charter. However, and more to the point when dealing with the matter before me, when looking at the principle of proportionality, careful consideration must also be given as to not be “stigmatized” by every “disproportionate or excessive sentence as being a constitutional violation”. [9]

28A period of incarceration is required to be proportionate to the gravity of the offence and the degree of responsibility of the offender. [10] Mr. Maharaj’s actions against the Board sit at the highest end of the moral blameworthiness pendulum. In totality, the case before me fits the custodial sentence at the “higher degree of gravity”. [11] Mr. Maharaj is convicted of ten mens rea offences; he defrauded the WSIB in over $100,000 in an elaborate, premeditated scheme that lasted for four years; and he holds a lengthy criminal record with convictions of fraud.

Parity

29In considering other similar sentences on similar offenders for offences committed in similar circumstances, I first turn to Virk. Mr. Virk defrauded the Board, like Mr. Maharaj, in a deliberate, premeditated scheme and gained benefits he otherwise was not entitled to receive. On two counts, Mr. Virk received a five-month custodial sentence, restitution for $33,596.54 and probation for two years. However, unlike Mr. Virk, Mr. Maharaj continued his scheme for four years, compared to Mr. Virk’s three months. Unlike Mr. Virk, Mr. Maharaj gained roughly three times in benefit payments as compared to Mr. Virk. Lastly, unlike Mr. Virk, Mr. Maharaj has a lengthy criminal record with fraud convictions for which he served a custodial sentence.

30Similarly, Her Worship Shousterman in Ontario (Ministry of Finance) v. 1375923 Ontario Inc. sentenced the owner to twenty-one months of incarceration and ordered him to pay fines of over $1 million dollars, even though this was his first such conviction. As noted above, Her Worship’s judgment has been upheld.

31Mr. Maharaj’s actions are also similar in context to Mr. Joseph Zarb’s disregard for the law. Although Mr. Zarb had declining mental and physical health concerns, Justice Goldstein in R. v. Zarb, 2014 ONSC 2585, 2014 O.J. No. 2180 sentenced him to a custodial sentence of eighteen months for several driving offences and driving without a licence or insurance. He too had a previous record for similar offences. There were aggravating circumstances that put Mr. Zarb at a high level of moral blameworthiness.

32Mr. Maharaj’s actions are also similar to welfare fraud cases, which can be used in considering a custodial sentence in regulatory offences. Justice Rady in R. v. Samhouri, 2005 ONCJ 478, sentenced Mr. and Ms. Samhouri to conditional sentences for defrauding the City of London of benefits totalling $196,000 over a ten-year period. Mr. and Mrs. Samhouri did not disclose information to the City of London as they were obliged to do and gained financial benefits. Mr. Samhouri at the time of sentencing was 70 years old with several health issues: cirrhosis of the liver, a form of cancer and diabetes. Mr. Samhouri received a conditional sentence of eighteen months and Mrs. Samhouri received a conditional sentence of ten months. I note here that a conditional sentence is essentially a custodial sentence that is served in the community, however, it is not available under the Provincial Offences Act.

33There are several other cases that are noteworthy to mention regarding custodial sentences for welfare fraud (see R. v. Smith, 2007 BCCA 468, R. v. Toy, 2009 ONCA 176, R. v. Friesen). The facts are similar to the one before me and include the elements of deceit and untrustworthiness. These fraudulent schemes span over years and accused individuals financially gain benefits where they were otherwise not entitled to receive. The accused individuals pre-meditated and planned their scheme to take money that should have otherwise gone to those who needed it.

34In Toy, the accused was convicted of two counts of welfare fraud. For count one, the appellant was convicted of collecting $69,462.60 in social assistance for misrepresenting herself as a single parent while she was living in a common law relationship. For count two, the appellant was convicted of collecting a further $25,594 in social assistance without disclosing support payments received from her common law spouse following their separation. The sentencing judge imposed a global sentence of five months incarceration and a separate restitution order in the amount of $90,127.15. The appellant’s appeal from her conviction was granted against the restitution order imposed.

35In Smith, Mr. Smith and his wife collected welfare payments from the Ministry of Human Resources between 1995 and 2004. They both concealed their employment from the Ministry. The total payments received by the Smiths exceeded $90,000. Mrs. Smith pleaded guilty and was sentenced to a 12-month conditional sentence and was ordered to reimburse the Ministry in the amount of $42,422.53. Mr. Smith was sentenced to 14 months incarceration and ordered to reimburse the Ministry in the amount of $41,307.39. In terms of a quantum of Mr. Maharaj’s fraudulent scheme, this case is the closest.

Positions of the Prosecution and Defence

36I gave judgment on this matter on November 17, 2022, and at the conclusion I gave the Crown and defence an opportunity to send me written submissions on sentencing. The sentencing was adjourned to December 13, 2022. I had only received sentencing submissions from the Crown on December 1, 2022. The sentencing was adjourned to February 13, 2023, at the defence’s request as counsel did not have the time to prepare for the sentencing as he was in a jury trial. Although he did not share them with the court, defence counsel was in receipt of some medical records or reports pertaining to Mr. Maharaj that he wanted to confirm.

37On February 13, 2023, defence counsel advised that he was presumptuous in his timing and was not able to prepare any written submissions. The Crown advised that she was provided with Mr. Maharaj’s medical records. Both the crown and defence advised that they would provide written submissions prior to the sentencing date of March 10, 2023.

38On March 10, 2023, I heard submissions on sentencing and received the defence’s written submissions. The sentencing hearing was adjourned to March 21, 2023.

39Originally, prior to defence submitting any material, the Prosecution was asking for a sentence of incarceration for forty-five days consecutive on each count Mr. Maharaj was found guilty. It submitted that this sentence was proper, considering the multiple aggravating factors, the principles of sentencing, including totality and restraint. It further submitted that this case “strongly” calls for general deterrence. I agree.

40On March 3, 2023, I received the Prosecution’s Reply Submissions on Sentence, and at paragraph 13 the Prosecution outlines an alternative, should the Court consider concurrent sentences. The Prosecution submitted that this court sentence Mr. Maharaj to at least two consecutive six-month periods of imprisonment for each fraudulent claim: one in 2012 and one in 2014. On March 10, 2023, the Prosecution maintains a fit sentence for Mr. Maharaj is a total term of imprisonment for twelve months. The Prosecution is not asking for any period of probation. Mr. Maharaj received $18,395.10 in benefits from the first claim (#26288481), reflected in Count 2. Mr. Maharaj received an additional $85,839.20 in benefits on his second claim (#26865868), reflected in Counts 6 to 9 and Counts 11 to 15.

41Defence counsel submits that a fit sentence is a suspended sentence with probation, given that this Court does not have the jurisdiction to impose a conditional sentence. He further submits that the sentence sought by the WSIB is “unsupported by the principles of parity and totality, and that the principles of proportionality and restraint, informed by the defendant’s circumstances, mitigate against the imposition of a custodial sentence.” Lastly, counsel advised that Mr. Maharaj is unable to pay a fine as he is currently unemployed and receiving Ontario Disability Support Program benefits.

Mitigating Factors, including Mr. Maharaj’s Health

42Defence counsel submits that there is medical history that I take into consideration when sentencing Mr. Maharaj. He provided this Court with an Affidavit of Amy Voss outlining the medical records of Mr. Maharaj, including records of when he was incarcerated. At page 77 of the Affidavit, counsel makes note that Mr. Maharaj has an inoperable and terminal condition that causes internal bleeding. On November 22nd, 2019, Dr. Alexandra Mitcham of St. Joseph’s Health Centre in Toronto recommended that Mr. Maharaj receive palliation as in their opinion he was at risk of sudden death.

43Defence counsel advised that Mr. Maharaj’s condition is currently unchanged. The most recent medical record is contained on page 82 of Ms. Voss’ affidavit, where Dr. Vincenzo Susini advises that as of November 23, 2022, Mr. Maharaj has a “high risk of bleeding mainly due to untreatable varices. This has been described as possible catastrophic bleeding by past specialist that would inevitably lead to death.” Defence Counsel further submits that Mr. Maharaj is not a young man, and with his condition, would possibly face violence if he were to be sent to jail.

44Lastly, as a mitigating factor, Defence counsel submits that there is no evidentiary record that Mr. Maharaj at the time of the offences was leading an elaborate life, nor involved in any greed-base scheme other than augmenting his income to make ends meet. Although these statements may be speculative, as there was no evidence presented to this Court to clearly substantiate either claim, I have taken these points into consideration when sentencing Mr. Maharaj.

Excessive Delay

45Defence counsel submits that I take into consideration excessive delay as a mitigating factor. I agree with the Prosecution that any delay in this proceeding is not mitigating. I refer to R. v. Duncan, 2016 ONSC 1319, [2016] OJ No 1013, at paras 43-44, that Mr. Maharaj has not suffered or has changed during the period of delay and is now reformed. Mr. Maharaj was never restrained by any bail condition; had the benefit of having the charges stayed before the delay application was reversed; and provided no evidence to this Court that he is now reformed.

The Principle of Restraint

46I am required to consider the principle of restraint, whether there are any other sanctions before sentencing Mr. Maharaj to prison. Also, that I seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction. [12]

47I have carefully considered Mr. Maharaj’s criminal record and his antecedents of fraud, repeated convictions for fraud, the premeditation involved, the fact that the offences were on-going for a period of four years, his lack of remorse and his denial at trial of any moral responsibility for his actions in gaining benefits for over $100,000. I find that in totality, incarceration is the only appropriate remedy. I do not agree with defence counsel’s submission that the fit sentence in this circumstance is a suspended sentence with probation.

48I have taken into consideration defence counsel’s submissions about Mr. Maharaj’s health concerns, and to the most extreme consideration, the possibility of him bleeding excessively to the point where the risk is fatal. The Court has taken into consideration that the quantum of sentence of incarceration balances Mr. Maharaj’s physical health conditions against the need for general deterrence and denunciation. I note in several cases that despite the physical and mental issues of accused person, they still received custodial sentences. See R. v. Friesen; R. v. Shahnawaz (2000), 51 O.R. (3d) 29 (C.A.); R. v. Samhouri, 2005 ONCJ 478 and R. v. Zarb, 2014 ONSC 2585.

49I have taken all factors into consideration, including the mitigating factors highlighted by defence and all principles of sentencing. I am sentencing Mr. Maharaj to thirty days in custody on each count consecutively. According, Mr. Maharaj is hereby sentenced to:

Count 2: On or about the 12th day of April 2012, within the City of Mississauga and elsewhere in the province of Ontario, did commit the offence of knowingly make a false or misleading statement or misrepresentation to the Workplace Safety and Insurance Board, contrary to s. 149(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A.

30 days in Custody

Count 6: On or about the 12th day of February 2014, within the City of Toronto, in the Toronto Region and elsewhere in the province of Ontario, did commit the offence of knowingly make a false or misleading statement or misrepresentation to the Workplace Safety and Insurance Board, contrary to s. 149(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A.