COURT OF APPEAL FOR ONTARIO
DATE: 20010108
DOCKET: C34482
RE: HER MAJESTY THE QUEEN (Respondent) v. LAVERNE FRANCIS (Appellant)
BEFORE: FINLAYSON, LABROSSE and FELDMAN JJ.A.
COUNSEL: Lisa Freeman,
for the appellant
Christine Tier,
for the respondent
HEARD: December 4, 2000
RELEASED ORALLY: December 4, 2000
On appeal from the sentence imposed by Justice Derek T. Hogg on February 28, 2000
E N D O R S E M E N T
[1] The appellant appeals the sentence of twelve months’ imprisonment imposed following her plea of guilty to two charges of welfare fraud over $5,000. Both charges arose out of the same facts.
[2] It is conceded that the sentencing judge erred when he concluded that conditional sentences are not available in cases of welfare fraud. This “presumptive custody” approach constitutes an error in principle. See R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 S.C.C. It is therefore open to this court to impose a sentence that is appropriate in the circumstances. We recognize that the fraud was significant and continued for several years. We also note that the appellant had stopped receiving benefits two years before she was caught. She is divorced with three children under her care. She upgraded her nursing skills while maintaining two part-time jobs. She was described as a hard worker and a dedicated parent. She is remorseful, accepts responsibility for her fraud and has made substantial restitution. The pre-sentence report was most favourable to the appellant.
[3] It is clear that in this case the requirements of s. 742.1 of the Criminal Code are satisfied. When consideration is given to the principles of sentencing, a conditional sentence of two years less one day is appropriate in the circumstances. It will include a condition of house arrest except for work purposes, school and attending to the necessities of the appellant’s children. The sentence will also include a community service order of one hundred hours.
[4] The appeal is allowed. The sentence is set aside and replaced by a conditional sentence in accordance with the draft conditional sentence order submitted.
(signed) “G. D. Finlayson J.A.”
(signed) “J. M. Labrosse J.A.”
(signed) “K. Feldman J.A.”