CITATION: R. v. Toy, 2009 ONCA 176
DATE: 20090225
DOCKET: C48428
COURT OF APPEAL FOR ONTARIO
Weiler, Moldaver and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Francis Cecilia Toy
Appellant
Catriona Verner, for the appellant
Joanne Stuart, for the respondent
Heard and released orally: February 12, 2009
On appeal from the conviction entered on May 29, 2007 and the sentence imposed on October 15, 2007 by Justice G. M. Hornblower of the Ontario Court of Justice.
By the Court:
[1] The appellant was convicted of two counts of welfare fraud. With respect to 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. With respect to 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 appeals from her conviction and, if leave be granted, against the restitution order imposed. The appellant has served the custodial portion of her sentence.
[2] The appellant’s primary grounds of appeal are whether the trial judge erred in holding that she was a common law spouse and whether the trial judge erred in the manner in which he dealt with the evidence. We would dismiss the appeal in relation to count 1. In relation to count 2 we are of the opinion that the trial judge did misapprehend the evidence and accordingly the conviction must be set aside and the amount of the restitution order reduced. Our reasons follow.
Facts
[3] The appellant, Richard Toy, and the appellant’s two children from a previous marriage moved from Calgary to Sarnia in 1987. They lived under the same roof at 119 Cardiff Court.
[4] On January 25, 1988, the appellant applied for “sole support” social assistance from the Ministry of Community and Social Services (the “Ministry”). In her application, she described Richard as a friend and tenant who paid her rent. The Ministry employee explained that rental income would reduce her assistance. She also explained that she would not be entitled to sole support if she had a common law spouse.
[5] On April 27, 1989, the appellant informed the Ministry that Richard had moved out on March 30, 1989. She further advised the Ministry that she had moved to 114 St. Vincent Street in Sarnia, a house owned by Richard. On April 28, 1989, she signed a statutory declaration confirming that she had moved to that address as of April 1, 1989 and that Richard was now her landlord and she was paying him rent.
[6] On June 12, 1989, the appellant reported a domestic assault to the police. She signed a statement describing Richard as her common-law spouse who had been living with her for five years. The statement was admitted through the officer at trial as past recollection recorded.
[7] On June 17, 1990, the appellant completed a cohabitation questionnaire at the request of the Ministry. The appellant again described Richard as her landlord. She indicated that she did not have joint finances or benefits with Richard. The appellant admits that, in fact, she and Richard co-signed two loan agreements, one in 1987 and the other in 1989.
[8] The appellant initiated proceedings in family court for exclusive possession of the 114 Vincent Street house on January 27, 1992. She also sought support for herself and her children. She also swore affidavits stating that her relationship with Richard began in Calgary in 1984, that they moved to Sarnia and had since lived together as common-law spouses. Richard was ordered to make spousal support payments.
[9] The appellant and Richard reconciled and on January 29, 1993, they married. Shortly thereafter, they moved into a house at 548 Confederation Street. The appellant voluntarily withdrew from family benefits on March 1, 1993.
[10] About two years later, the parties separated in 1995. They reconciled again in the fall of that year and began living together in April 1996. They finally separated in 1996 after another domestic assault.
[11] On November 29, 1995, the appellant re-applied for social assistance. She declared that she was separated from her husband, that she was not receiving support and that he had not made any provision for her or her children.
[12] On August 26, 1996, the appellant petitioned for divorce and applied for interim support, including health benefits for her daughter, as well as exclusive possession of the 547 Confederation Street home. The appellant swore that she and Richard had lived together for twelve years prior to their marriage in 1993 and that she had assumed the role of housewife. Richard swore that he did not live in a common law relationship with the appellant prior to the marriage.
[13] Richard was ordered to pay interim support for the appellant and her children and to maintain coverage for the appellant and her daughter through his health benefits package. The appellant obtained interim exclusive possession of the home.
[14] Following their divorce, Richard was ordered to pay spousal and child support and the appellant obtained exclusive possession of the matrimonial home. Richard testified that he made support payments and received a letter from the Family Responsibility Office confirming that he had discharged his obligations. The support payments were not deducted from the appellant’s assistance from the Ministry.
Analysis
Did the trial judge err in holding that the appellant was a common law spouse? Did the trial judge err in his rejection and treatment of the evidence of defence witnesses?
[15] As indicated above, the appellant swore in her divorce proceedings that, prior to marrying Richard in 1993, she had been in a common law relationship for some twelve years. The trial judge relied on her affidavit in those proceedings.
[16] The appellant submits that the trial judge failed to consider the weaknesses in her affidavit especially in light of his earlier finding, in relation to the evidence she had given before him, that the appellant’s oath held no weight and the fact that she had a motive to lie in the proceedings. The appellant submits that the trial judge required independent corroborative evidence before he could rely on those affidavits.
[17] The appellant also alleges the following errors in relation to the trial judge’s treatment of the evidence in his reasons. She alleges that the trial judge:
• Failed to consider the defence evidence in its totality and instead considered the evidence of the various witnesses in isolation
• Failed to properly apply the principles in R. v. W(D) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)
• Rejected exculpatory evidence of two witnesses on the basis that it was inconsistent with the inculpatory evidence
• Failed to consider the evidence of the appellant’s daughter
[18] Finally, in oral argument before us, the appellant submitted that the trial judge erred in not considering whether the relationship amounted to a common law relationship as defined in a social service context as opposed to a common law relationship for purposes of family law.
[19] We did not call upon the Crown to respond to any of these arguments as we were of the opinion that they had no merit.
[20] Dealing with the last argument first, the trial judge’s reasons make it clear that he understood what was necessary to constitute a common law relationship for Ministry purposes and that the appellant’s relationship with Richard fell within it.
[21] In relation to the issue of whether confirmatory evidence of the appellant’s affidavit in the divorce proceedings was required, a trial judge is entitled to accept all, part, or none of the evidence of a witness. The exhibits attached to the appellant’s affidavit provided significant support for her statement that she had lived common law with Richard prior to their marriage. The trial judge was entitled to find, based on the affidavit evidence alone, that the appellant was a common law spouse. While confirmatory evidence existed, the trial judge did not need to refer to it.
[22] We would not give effect to the appellant’s submissions in respect of the other grounds of appeal outlined above. The trial judge found that the evidence of the appellant’s two exculpatory witnesses, Bird and Archer, did not add up and did not leave him with a reasonable doubt. While the reasons may not have been perfect, the trial judge explained why he did not believe these witnesses. Although the trial judge did not refer to the evidence of the appellant’s daughter Laura, he was not obliged to do so in the circumstances. A trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial: R v. R.E.M., 2008 SCC 51, [2008] 235 C.C.C. (3d) 290.
[23] The case turned largely on the documentary evidence. The fact that the trial judge commented on the evidence of many witnesses seriatim does not mean that he failed to consider the totality of the evidence or to weigh the evidence given by one witness against another’s.
[24] In relation to R. v. W(D) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) a trial judge is presumed to know the law and is not required to give a ritualistic incantation of the three-step method of approaching the evidence. As recently stated in R v. Y (C.L.), (2008), 2008 SCC 2, 227 C.C.C. (3d) 129 (S.C.C.) at 132-135, what is critical is whether, on a review of the reasons as a whole, the correct burden and standard of proof was applied. We are satisfied that the trial judge did so. The trial judge decided he would act on the appellant’s affidavit evidence in the family law proceedings. He was entitled to do so and confirmatory evidence was not required.
[25] In any event, the cumulative effect of the evidence that the appellant and Richard were in a common law relationship and were financially interdependent was overwhelming. That evidence included evidence that:
• The appellant and Richard moved from Calgary to Sarnia together
• They moved to various addresses in Sarnia together
• They co-signed two bank loans
• The appellant and her daughter were beneficiaries of Richard’s health benefits
• The appellant was a beneficiary of Richard’s pension plan
• The appellant reported Richard to the police in relation to domestic assaults against her in 1989 and 1996. She admitted in evidence that his abuse pre-dated their marriage and in her statements to the police admitted that they lived together as common law spouses at the material time.
• The appellant admitted in three affidavits, one in 1992 and two in 1996, and her testimony in an examination for discovery in 1997 that she and Richard had lived together.
[26] Even assuming that the trial judge erred in his reasoning, overall, there was no substantial wrong or miscarriage of justice in relation to the trial judge’s finding that a common law relationship existed.
The admissibility of the police officer’s notes of the appellant’s statement that she was living common law with Mr. Toy for five years.
[27] The police officer had no recollection of taking the appellant’s statement. The appellant submits that in order for the statement to be admitted, the witness must be able to recollect the giving of the statement and must be able to testify that at the time the statement was given, he or she could remember the events in question and that the recorded statement was true. She submits these are the requirements for past recollection recorded. In this case the officer had no memory of the statement and could not testify where he got the information from.
[28] In our opinion the statement was nevertheless admissible. The police officer’s evidence was admitted for the limited purpose of proving that the statement was made. The police officer was under a duty to record what the appellant said to him regarding the domestic assault. Although the police officer could not remember taking this statement, he testified as to his usual practice. The statement appears to fall within the exception in Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608 as being a recording within the recorder’s normal scope of duty. In any event, the statement was not that of the police officer but of the appellant. The appellant signed each page of the statement and the purpose of her doing so was to confirm the accuracy of what was recorded. The trial judge did not err in admitting the statement.
Did the trial judge misapprehend the evidence?
[29] In relation to count 2, namely whether the appellant failed to disclose support payments received from her husband following their separation, the trial judge stated at page 24 of his reasons for judgment:
With respect to the elements of count two, they have all been proven beyond a reasonable doubt … [It] is the receipt of the money from Richard Toy that she failed to disclose that constitutes the fraud. Accordingly, there will be a conviction on count two as well.
The trial judge appears to have misapprehended the evidence in this regard.
[30] At one point the Crown stated in submissions in reply in reference to count 2:
I stand corrected as far as the notification goes. I stand by the non-payment of the money.
[31] The Crown appears to have conceded that the appellant notified Social Welfare about the support payments. The Crown alleged she was guilty because she made no effort to pay the money back and was willfully blind as to the fact that she continued to receive the money.
[32] The trial judge did not address the Crown’s concession in his reasons, nor the basis on which the Crown was seeking a conviction. In our opinion, the conviction on count 2 must be set aside.
Restitution
[33] The trial judge made a restitution order in the amount of $90,127.15. The amount in relation to count 2 was $25,594. That amount is to be deducted from the $90,127.15.
[34] In relation to count 1, it appears that there was a period of time when the appellant was not cohabiting with the respondent from January, 1992 to and including January 1993. We would order that the payments made during this time period be deducted from the restitution order save and except for the amount of support payable for three months when there was an outstanding support order against Mr. Toy. We understand that the amount of support ordered totals $3,000 and was waived by the appellant.
[35] Having regard to these reasons, we order that the restitution order in the amount of $90,127.15 is set aside and that in its place, a restitution order in the amount of $51,263.85 be substituted.
“K.M. Weiler J.A.”
“M.J. Moldaver J.A.”
“Paul Rouleau J.A.”
RELEASED: February 25, 2009