Court of Appeal for Ontario

Date: 2003-08-25 Docket: C38390

Before: Doherty, Charron & Armstrong JJ.A.

B E T W E E N :

Her Majesty the Queen, Respondent

• and -

Carol Clarke, Appellant

Counsel: Tanya Kranjc, for the appellant Erika Chozik, for the respondent

Heard: August 20, 2003

On appeal from the conviction entered on February 1, 2002 and the sentence imposed on May 30, 2002 by The Honourable Justice Trafford of the Superior Court of Justice sitting without a jury.

Endorsement

[1] The appellant was convicted of fraud in relation to social assistance benefits received over the course of approximately three years. She was sentenced to an 18-month conditional sentence followed by three years probation. The conditional sentence and probation orders included conditions that she make restitution in an amount of no less than $100 a month and make reasonable efforts, as directed by her probation officer, to make full restitution in the amount of $25,281. She appeals against conviction and sentence.

[2] The appellant was self-represented at trial. Her main ground of appeal against conviction relates to the trial judge’s conduct of the trial. The appellant submits that the trial judge’s intervention during her examination and re-examination was so excessive that it effectively prevented her from presenting her evidence in the manner she had chosen. She submits further that his intervention in the process became cross-examination and, as such, gave rise to a reasonable apprehension of bias. Finally, the appellant contends that the trial judge failed to provide her with adequate assistance, particularly during the course of her cross-examination of the Crown witnesses.

[3] There is no question that the trial judge assumed a prominent role in eliciting the appellant’s evidence. We are not satisfied, however, that the appellant was prejudiced as a result. The appellant, in answering the questions directed to her, testified about all the matters she had identified as relevant to her defence. In addition, the trial judge repeatedly asked the appellant whether she had anything to add to her testimony with respect to any of the matters that were canvassed. In the result, we are not persuaded that the active role of the trial judge resulted in any prejudice to the appellant in the presentation of her evidence as she contends.

[4] To the extent that some of the trial judge’s questions may arguably have been more in the nature of cross-examination and may have been better had they not been posed, we are of the view that the questions did no more than alert the appellant to the obvious areas of concern in the case. We see nothing in this record that would give rise to a reasonable apprehension of bias.

[5] Finally, we see no merit to the contention that the trial judge failed to provide the appellant with adequate assistance. To the contrary, the record reveals that the trial judge went to great length to assist the appellant at the various stages of the trial.

[6] Consequently, we would not give effect to this ground of appeal.

[7] We see no merit to the additional grounds of appeal relating to the trial judge’s consideration of the evidence and to its sufficiency to support a conviction. The appeal against conviction is dismissed.

[8] On her appeal against sentence, the appellant contends that it was inappropriate for the trial judge to impose conditions that she make restitution in the circumstances of this case where it was difficult to calculate the amount of the loss. Further, she submits that there was no evidence that she was capable of making restitution.

[9] We do not accept either submission. With respect to the appellant’s ability to make restitution, it is noteworthy that the sentence requires her to make a minimum payment of $100 a month, and further amounts only to the extent that she can reasonably do so. It cannot be said that these conditions are unreasonable given that the appellant had a full time employment earning $46,000 a year, she owned a home in which she had $20,000 equity, and she was expected to complete a Masters Degree in Business Administration in two years. Further, we are of the view that the finding on the quantum of the loss is supported by the evidence. Hence, we see no reason to interfere with the sentence.

[10] Leave to appeal the sentence is allowed but the appeal is dismissed.

RELEASED:

"AUG 25 2003" "Doherty J.A."

"JD" "Louise Charron J.A."

"Robert P. Armstrong J.A."