DATE: 20010921 DOCKET: C35034
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. MOHD WAKIL (Respondent)
BEFORE:
DOHERTY, GOUDGE and CRONK JJ.A.
COUNSEL:
Mitchell Eisen
for the appellant
Randy Schwartz
for the respondent
HEARD:
September 17, 2001
RELEASED ORALLY:
September 17, 2001
On appeal from the conviction imposed by Justice Milton A. Cadsby dated September 16, 1998.
E N D O R S E M E N T
[1] As Crown counsel indicates in his factum, this was a case of welfare fraud by non-disclosure. It is common ground that the appellant did not disclose to welfare authorities that he was receiving a loan from his cousin to make the monthly payments on a vehicle he had purchased. It is also common ground that disclosure of this loan to the welfare authorities would have reduced the appellant’s welfare entitlement by some $20,000 over the relevant time period.
[2] The appellant first applied for welfare in March 1992. He indicated that he had no income, revenue, earnings, or support, and no other financial resources to which he was entitled. He declared that he owned a car. A month later, the appellant’s cousin began to lend the appellant money needed to make the monthly payments on the car. It would seem that the cousin in fact made the payments, or at least most of them, directly to the finance company.
[3] In September 1993, the appellant was required to make a new application for welfare. He did not disclose that he still owned the vehicle. In response to a question about income, earnings, revenue, support or other financial resources to which he was entitled, the appellant did not disclose the loan from his cousin. None of the questions put to the appellant specifically referred to loan advances made to the appellant or to monies being paid on the appellant’s behalf to his creditors. Nor did the case workers specifically ask the appellant about any loans he may be receiving at the time of his application.
[4] The Crown argued that the appellant knew that the questions put to him were directed to disclosure of any and all sources from which the appellant was receiving money, and that the appellant understood that he was required to disclose the loan, but chose deliberately not to disclose it because he knew disclosure would affect the amount of welfare received.
[5] At trial, the defence argued that there was no obligation to disclose the loan until September 1993, and that even after the regulation was introduced to clarify the requirement to disclose the loan, a reasonable person would not have understood from the questions posed on the relevant forms that he or she was required to disclose the existence of the loan. This argument was made in support of the position that the non-disclosure did not amount to a dishonest act and, therefore, could not be a “fraudulent means” within the meaning of s. 380 of the Criminal Code. The defence also argued that even if a reasonable person would have understood that there was an obligation to disclose the loan, the appellant, in part because of his relative lack of commercial sophistication, and in part because of his unfamiliarity with the English language, did not understand that the questions referred to the loan made to him by his cousin. This argument was made in support of the contention that the appellant did not knowingly fail to disclose material information and, therefore, did not have the mens rea required for fraud. The defence relied on the appellant’s evidence and the absence of any reference to loan advances in the questions posed by the welfare authorities.
[6] In his reasons for judgment, the trial judge appears to have merged the two issues raised by the defence into a single issue:
Defence counsel submits that the regulation changes the meaning of the word “loan” as a layman would understand it, in the sense of a loan being regarded as income and that the Defendant ought not to be expected to know that.
I don’t think the Court can make up a special rule for this Defendant or any other prospective defendant – or any other recipient would be a better way of putting it, of welfare.
I can’t say he’s not fluent in English or he doesn’t seem to be a very bright individual so he’s excused for not knowing about it.
The General Welfare Assistance Act is for the assistance of needy people in the community. The regulations deal with entitlement of payment under the Act.
In this case this man was receiving assistance for five years. A young man. He couldn’t secure employment for five years. So that he received a very substantial amount of money from the community to support himself and his wife.
The distribution of this money must be under regulation, which must be adhered to. So I don’t think it’s an answer to this allegation, which is one of fraud by non-disclosure, to say that he’s not expected to know that a loan is considered income under the Act.
While I’ve said that I thought he was a person of fairly low intellect, I don’t believe a Court can approach the matter on that basis and treat one welfare recipient different than the other and certainly unless there’s very compelling reasons, which there isn’t in this case.
He didn’t answer the questions that he should have answered about his motor vehicle and the financing of it when a reasonable person seeking this kind of support from the community would know he had to do it.
He decided he was going to hang onto the car, hang onto the ownership of the car by this arrangement with his cousin and keep quiet about it as far as the welfare assistance program was concerned. That constitutes fraud.
He made a mistake. Had he been honest and upfront, he wouldn’t have been in the position he’s in now.
In any event, I’m satisfied that the non-disclosure was intended to hide his actual financial position from the Municipality for the purpose of receiving the welfare assistance that he was receiving, and I find him guilty of the offence.
[7] While the last three paragraphs referred to above indicate that the non-disclosure of the loan was deliberate and knowing, they follow immediately upon an analysis in which the trial judge excluded from his consideration personal factors that were potentially very important to the determination of the appellant’s state of mind. Considering the reasons in their totality, we must conclude that the trial judge failed to consider the question of mens rea separate and apart from that of the actus reus. He failed to determine whether on the totality of the evidence the Crown had proved beyond a reasonable doubt that this appellant knew that the loan made to him by his cousin had to be disclosed to the welfare authorities.
[8] The trial judge did find that the appellant knowingly failed to disclose his continued ownership of the motor vehicle That finding was certainly open to him on the evidence. The finding that the appellant lied to the welfare authorities about the car was certainly relevant to his credibility and relevant to the question whether he knowingly failed to disclose the loan as well. The two questions were not, however, one in the same and the finding that he knowingly lied to the welfare authorities concerning the ownership of the vehicle, standing alone, does not support a conviction.
[9] In our view, the appeal must be allowed. As there was evidence to support a conviction, a new trial must be ordered. In ordering a new trial, we observe that the ultimate determination of whether a new trial should be held is, of course, up to the Crown. It may well be that given the passage of time and the nature of the evidence, that the Crown will choose to expend its resources in other places, particularly if it can recover the over payments in some other way.
“Doherty J.A.”
“S.T. Goudge J.A.”
“Cronk J.A.”