COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fagan, 2013 ONCA 32

DATE: 20130121

DOCKET: C53233

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Colleen Fagan

Appellant

David Russell, for the appellant

Karen Shai, for the respondent

Heard and released orally: January 17, 2013

On appeal from the conviction entered on May 13, 2010 and the sentence imposed on August 12, 2010 by Justice Peter H. Howden of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of two counts of fraud – one relating to an elderly man, William McCormack, and the other relating to the Department of Veterans Affairs (“DVA”) – and one count of theft – relating to Mr. McCormack – by Howden J. of the Superior Court of Justice on May 13, 2010.

[2] On August 12, 2010, the trial judge imposed a custodial sentence of 20 months, plus two years of probation, and a restitution order of $125,000 in favour of the estate of Mr. McCormack and $13,994 in favour of the DVA. One of the terms of probation requires the appellant to commence restitution payments of $50 per month within six months after her release and continue payments of $100 per month throughout the second year of probation.

[3] The appellant appeals her convictions on the two counts relating to Mr. McCormack. She also appeals the restitution component of her sentence, including its linkage with the probation order.

[4] The appellant lived in Mr. McCormack’s home as a caregiver from 2002 to 2007. In 2002, she was 44 and he was 78 years old. Starting almost immediately after her arrival, the appellant began withdrawing large sums of money from Mr. McCormack’s bank account. From 2003 to 2006, she withdrew about $180,000. This was more than Mr. McCormack’s pension income and far more than his modest living expenses.

[5] The Crown position at trial was that the appellant exercised almost complete control over an elderly, vulnerable man and defrauded and stole a substantial amount of money from him.

[6] The defence’s principal position at trial (the appellant did not testify) was that the appellant did not withdraw the subject money; someone else did. Her secondary position was that, if she did obtain the money, it was because Mr. McCormack was both capable and generous and chose to reward her for her excellent services as a caregiver.

[7] On appeal, the appellant abandons her principal position. However, she asserts that the trial judge reasoned in a speculative fashion and improperly reached the conclusion that the appellant lost his independence over time and came under the control of the appellant.

[8] We do not accept this submission. The appellant’s argument on this issue is essentially an exhortation that we re-try the case. In our view, the trial judge carefully reviewed the evidence of family, friends and professional people closely involved with Mr. McCormack and came to the conclusion that the appellant abused her position to gain control over him and then defraud and steal, on many occasions over a five year period, his assets.

[9] The appellant also submits that the trial judge reached an unreasonable verdict. Her argument on this issue traverses the same evidentiary terrain as her first submission. In our view, the trial judge’s decision was entirely reasonable.

[10] Finally, the appellant contends that the trial judge erred by imposing a restitution order and imposing a term of probation requiring the appellant to make monthly payments. In particular, the appellant asserts that the trial judge failed to take account of her ability to pay a substantial restitution order, especially with payments scheduled to start soon after her release from jail.

[11] We disagree. The appellant took a great deal of money from a vulnerable elderly man and blatantly defrauded money from the DVA. A restitution order in favour of these victims was entirely appropriate. Implicitly, in fixing a quantum of restitution well below the amount defrauded and stolen and, especially, by choosing very low payments linked to 18 months of a two year probation order, the trial judge was clearly factoring in the appellant’s ability to pay. It needs to be recalled that the appellant has offered no explanation of what happened to the money in the period from her theft/fraud to the charges being laid.

[12] The appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”