Court File and Parties

Court File No.: Toronto

Date: 2012-05-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Marie Ingrid Stephens

Before: Justice Rutherford

Heard on: September 19, 20, 21, 2011; January 9, 10, 2012; February 14, 2012

Reasons for Judgment released on: May 30, 2012

Counsel:

Derek Ishak, for the Crown

Glen Henderson, for the accused

RUTHERFORD, J.:

Facts and Charge

[1] Marie Ingrid Stephens is charged that sometime between and including the 1st day of April, 1998 and the 20th day of July in 2007, in the City of Toronto, in the Toronto Region did by deceit, falsehood or other fraudulent means defraud Ministry of Community and Social Services out of monies of a value which exceeded $5,000.00 contrary to the Criminal Code.

[2] Between April 1998 and July 2007 Marie Stephens received monthly payments from the Ontario Disability and Support Plan (ODSP). In 1998 Ms Stephens was approved for financial support because she met the financial and medical eligibility criteria.

[3] In 2007 Ms Stephens was asked to attend at the Ontario Disability and Support Plan offices for a meeting. She did not respond so her support payments were suspended. Ms Stephens subsequently attended and met with an income support specialist. After the meeting and after some investigation the officials at ODSP determined that Ms Stephens failed to disclose information about her income and assets. It was determined that Ms Stephens was overpaid by $107,442.24.

Issues

[4] The issue for me to decide is whether Ms Stephens committed a fraud by failing to disclose to the Ontario Disability and Support Plan all correct personal financial information concerning her assets and income and whether the non-disclosure resulted in a financial deprivation or risk of deprivation to the Ontario Disability and Support Plan. In order to decide this I must determine whether Ms Stephens, between 1998 and 2007, actually had assets and income to disclose. To make this determination I must assess the credibility and reliability of the evidence before me, specifically that of Ms Stephens, who testified in her defence.

Agreed Facts

[5] The case before me is straightforward. At the outset of the trial, a number of exhibits were filed on consent. It is agreed that:

1. Between August 2002 and June 2006 there were three vehicles registered in Ms Stephens' name;

2. On June 18, 2002 Ms Stephens was the registered owner of property located at 1872 Queen Street East, Toronto;

3. On March 24, 2005 Ms Stephens was the registered owner of property located at 58 Joseph Street, Port Carling, Ontario;

4. On January 19, 2006 Ms Stephens signed a Mortgage Loan Offer with the Italian Canadian Savings and Credit Union Ltd. in relation to the property at 1872 Queen Street East, Toronto. The value of the mortgage was $200,000.00. The first payment was made on February 23, 2006. David McWilliams was the guarantor of the mortgage;

5. Ms Stephens held a joint CIBC bank account with David McWilliams which was opened on February 7, 2006. The proceeds of the mortgage from the Italian Canadian Savings and Credit Union Ltd. were deposited into this account;

6. Ms Stephens held a CIBC business account in the name of the "Ingrid's Place". It was opened on August 28, 1998. There were monthly deposits into the account from 2000 to 2007. Mortgage payments of $666.80 were made bi-weekly to the Italian Canadian Savings and Credit Union Ltd. from this account;

7. Ms Stephens registered a CIBC guaranteed investment certificate in the amount of $1,000.00 in the name of "Ingrid's Place" on July 17, 2006 with a maturity date of July 17, 2007;

8. Ms Stephens registered "Ingrid's Place" under the Business Names Act on April 22, 1998. Ms. Stephens is listed as the sole proprietor. The principle place of business is listed as 1872 Queen Street East in Toronto. The mailing address attached to this business is 427 Strathmore Boulevard in Toronto.

[6] It is conceded that between March 10, 1997 and June 21, 2007, Ms Stephens did not disclose any of this information to the income support specialists at ODSP or anyone else at the Ministry of Community and Social Services. A detailed history of the above assets and bank accounts were filed as an Agreed Statement of Fact on the trial.

Crown's Evidence

[7] The Crown called 6 witnesses, 5 of which were from the Ministry of Community and Social Services specifically from the Ontario Disability and Support Plan. The 6th witness was from the Land Registry Office. He described the land transfers and registered mortgages to properties at 1872 Queen Street East, Toronto and 58 Joseph Street in Port Carling.

Rosetta Ferraro

[8] Rosetta Ferraro was the first witness. Ms Ferraro is a Program Coordinator and an Ontario Disability Support Plan Manager. From 2006 to 2010 she was an Eligibility Review Unit Manager. Ms Ferraro testified how overpayments could be made to a recipient of ODSP. She testified that it is important that clients disclose all income and assets in order that proper calculations can be made respecting eligibility. Ms Ferraro testified the Ontario Disability and Support Plan is there to assist clients, that is, there are many benefits in the legislation to help clients in different ways. For example, there are benefits to help clients re-enter the workforce. Incentives are offered to clients if they are employed and working. Because a client is often unaware of specific benefits authorized under the legislation, Ms Ferraro testified it is important to ensure that the client understands the importance of disclosing all financial information and living arrangements. This disclosure assists caseworkers in advising the client of the possible benefits and/or incentives available to them pursuant to the legislation. A client is also required to disclose all financial information so the Plan can ensure the client's financial eligibility.

[9] Ms Ferraro agreed in cross-examination that it is possible for a person to own a home, own a car, work and still be a recipient of the ODSP. She testified that in order to determine whether support payments are available in these circumstances, information must first be supplied by the client.

[10] Ms Ferraro further testified about the consolidated verification process that is conducted with all Ontario Disability and Support Plan clients. She stated it is an in-depth interview whereby the client and worker go through such items as assets, accommodations and employment to ensure there is a mutual understanding between the Plan and the client regarding their respective rights and responsibilities. Ms Ferraro testified that the client not only has specific rights pursuant to the legislation but also has specific responsibilities to the Ministry.

[11] Ms Ferraro testified that it was brought to her attention that Ms. Stephens had undeclared property, undeclared business ownership, undeclared business income and undeclared assets. Once she reviewed this information, she determined that Ms Stephens was financially ineligible to receive Ontario Disability funds. She testified that with the information she had concerning Ms Stephens, her financial ineligibility dates back to April 1, 1998. Ms Ferraro determined that as of April 1998 Ms Stephens had assets that were $325,958.92 over the allowable limit for a single person. Ms Ferraro calculated that $107,442.24 should be clawed back. This represents all support payments received by Ms Stephens from the Plan.

Lorraine Lord

[12] Lorraine Lord was an Income Support Specialist who took applications from clients. She managed a large caseload, assessed claims and recalculated claims. Her role was specifically to determine and confirm continued financial eligibility of the client. She testified as to what information is required from clients and what clients can expect from the Ontario Disability and Support Plan. She explained the Rights and Responsibilities forms to be completed and signed by the recipients of the Plan.

[13] Ms Lord met with Ms Stephens in 2005 and conducted a Consolidated Verification Review. Because of her large caseload and the passage of time, she has no specific memory of the interview but nonetheless she identified Exhibit 9 as the Rights and Responsibilities Form that was signed by both her and Ms Stephens. She testified she always advises clients it is their responsibility to declare all income and assets and any changes thereto to continue receiving financial support under the program. She testified that the form is straightforward and that she is always clear during the interview that the total value of a person's assets can affect the person's financial eligibility. She confirmed that on the form there is a reference to social assistance fraud.

[14] Ms Lord agreed in cross-examination that clients sign a Consent to Release Information Form in order for the Ministry to verify financial information. She testified that the caseworkers predominantly rely on clients to self-report. She confirmed that she and her colleagues always inquire whether the client has cash, bank accounts, property or investments. Given the huge volume of cases, according to Ms Lord, the Ministry needs to trust the client will honestly report all financial information; otherwise, all their time would be spent confirming it. She testified that is why workers must be clear in their explanations to clients about the clients' rights and responsibilities.

Tracy Giannone

[15] Tracy Giannone, an Ontario Disability Support Plan caseworker, testified she met with Ms Stephens on January 31, 2007 at which time she assisted Ms Stephens with an Ontario Disability and Support Plan application form. This form is marked as Exhibit 15 on the trial. At no time did Ms Stephens indicate in the application that she had a financial interest in a business. The application indicates that Ms Stephens disclosed a $75,000.00 GIC with Desjardins Credit Union.

Rose O'Hanlon

[16] Rose O'Hanlon testified that on March 16, 2007 she was an Income Support Specialist with ODSP who arranged a meeting with Ms Stephens. Prior to March 16, 2007, Ms O'Hanlon made attempts to contact Ms Stephens for the purposes of an interview. Ms Stephens was non-responsive. Ms. O'Hanlon testified that because Ms Stephens did not respond to her requests for a meeting she suspended Ms Stephens support payments. Ms Stephens then contacted the office to attend. During the interview, Ms Stephens advised Ms O'Hanlon that in 1996 she had a business called "Just Essentials". She advised the business went bankrupt. She further advised Ms O'Hanlon that she has not operated any other business subsequent to the bankruptcy. Ms Stephens told Ms O'Hanlon about businesses that Mr. David McWilliams operated at 1872 Queen Street East, Toronto including "Ingrid's Place". Ms Stephens said she paid her rent to "Ingrid's Place". She further advised Ms. O'Hanlon that 1872 Queen Street East was for sale.

[17] Ms O'Hanlon agreed in cross-examination that the Ontario Disability and Support Plan legislation dictates how home ownership, car ownership, and employment income could impact financial eligibility under the Plan.

Barbara Pal

[18] Barbara Pal testified that she conducted a review of Ms Stephens' file between March 28, 2007 and June 29, 2007. Ms Pal was an Eligibility Review Officer. Ms Pal testified that after her review she deemed Ms Stephens' file to be ineffective from April 1, 1998 to June 2007 due to Ms Stephens' failure to provide all necessary information regarding assets, for failure to declare all business bank accounts in the name of "Ingrid's Place" and for not declaring a Business Guaranteed Investment Certificate. Ms Pal agreed that a client could be eligible to receive support payments if the client owns a business and has business income so long as the assets fall in line with the allowable asset levels under the legislation.

[19] Ms Pal testified that no information was ever provided by Ms. Stephens in relation to assets and business income; therefore, the officials at ODSP were unable to make any determination regarding Ms Stephens' possible eligibility. Ms Pal agreed the reason for terminating Ms Stephens' file was for non-disclosure of assets and not because a specific calculation had been done to determine that Ms Stephens' assets exceeded an allowable level.

Defence Evidence

Marie Stephens

[20] Marie Stephens was the only witness called by the defence. She is a 62-year-old educated woman. She presently resides in Bracebridge with Mr. David McWilliams. She testified that Mr. McWilliams is not her spouse but a good friend. She presently co-owns a property with Mr. McWilliams at 1106 Kirk Line West in Bracebridge, Ontario. She also owns a second property. Ms Stephens testified that she bought the properties with money from an insurance payment that came as a result of a car accident she was in several years ago. In November 2007, shortly after her support payments from the Ontario Disability and Support Plan stopped, she began operating a dog and cat grooming and boarding business. It is called "Ingrid's Place Spirit Dog and Cat Boarding and Grooming B and B".

[21] Ms Stephens testified that she has many physical, medical and mental health concerns that started about 15 years ago. As a result of being diagnosed with cancer, she was required to take medication and undergo several procedures and surgeries to battle the disease. As a result of having cancer, Ms Stephens testified she became depressed and was treated for clinical depression. At the time of being diagnosed with cancer, Ms Stephens testified that she owned and operated a viable electrolysis business called "Just Essentials". She started this business in 1990.

[22] In 1996 Ms Stephens filed for bankruptcy because she became ill with cancer and had complications resulting from surgeries. She agreed in cross-examination that going through the bankruptcy proceedings was an ugly experience. Ms Stephens testified that her many health concerns caused her to be unable to work and consequently she applied for welfare through Ontario Works. She then applied to the Ontario Disability and Support Plan for assistance. Ms Stephens was required to provide information regarding her medical situation and her financial circumstances.

[23] Ms Stephens agreed in her evidence that she completed the required ODSP forms and signed documents acknowledging that she knew what her rights and responsibilities were regarding obtaining financial assistance from the Plan. She testified at no time was she dishonest with the Ontario Disability and Support Plan. She agrees however that she did not tell any of her caseworkers about properties she was on title for, business bank accounts she held, joint bank accounts she held with Mr. McWilliams, vehicles registered in her name or a CIBC GIC registered in the name of "Ingrid's Place".

[24] Ms Stephens testified that during the time she received Ontario Disability funds, she lived at 1872 Queen Street East in Toronto. She testified she rented a room at this address. She testified that while she was living there her friend and landlord, Mr. David McWilliams, operated different businesses out of the property. Early on Mr. McWilliams operated an electrolysis business called "Ingrid's Place". Ms Stephens testified that because of her illness and complications arising from her illness, she was unable to work at the business and therefore derived no income from it. She testified that Mr. McWilliams operated the business on his own. Two aestheticians whom Ms Stephens knew from the past worked at the business performing the procedures on clients attending for electrolysis. Ms Stephens agreed it was her name and her earlier electrolysis business reputation that brought former clients to "Ingrid's Place".

[25] Ms Stephens testified that although she was too ill to work, the business was therapeutic and it represented hope that one day she would be well enough to operate it on her own. She agreed that she often sat in with clients and technicians to act as a consultant. This was done without remuneration. She testified it was also this same hope of a future business that caused her to register a business name, specifically "Ingrid's Place" under the Business Names Act in April 1998.

[26] Ms Stephens agreed that she opened a business account in the name of "Ingrid's Place" and was a primary bankcard holder on the account. She testified that her rent was paid into this account. She testified that at no time did she derive income from the business but acknowledged that supplies were paid from the account and monies went into the account. She testified that the only benefit she got from the business was that she was able to get specialized beauty and health products because of her photosensitivity. She testified that Mr. McWilliams had access to the business bankcard because it was he who operated the business.

[27] Ms Stephens also testified that at some point after moving into 1872 Queen Street East, she operated a Bed and Breakfast at the address. She offered holistic therapies. She agreed she ran the business but testified she derived no income from it. Any monies she received covered expenses only. She was of the view that she did not need to disclose this to her caseworkers at ODSP because she was not earning an income, therefore had no income.

[28] Ms Stephens agreed that she was the titled registered owner of the properties at 1872 Queens Street East, Toronto and 58 Joseph Street, Port Carling, Ontario. Ms Stephens testified that although she was on title she was not really the owner. She testified that she was on title out of duty and friendship to her friend David McWilliams. She testified he was having trouble with his family. She was under the impression that Mr. McWilliams' family tried to pressure him to sell the properties. She testified that she and Mr. McWilliams were long-time friends; therefore, she wanted to help him. She agreed to have both properties put into her name. The Toronto property went into her name in 2002 and the Port Carling property went into her name in 2005. She testified that she signed a promissory note on March 22, 2005 in the amount of $182,016.62 in favour of David McWilliams. A photocopy of the note was marked as an exhibit on the trial. Ms Stephens also executed a Special Power of Attorney on July 16, 2007 appointing David McWilliams to act as her attorney in relation to the property at 1872 Queen Street East, Toronto. A photocopy was marked as an exhibit.

[29] Regarding the property at 1872 Queen Street East, Ms Stephens gave a vendor take back mortgage to Mr. McWilliams and then a few years later applied for a mortgage from the Italian Canadian Savings and Credit Union Ltd. Once that was approved, the mortgage in favour of Mr. McWilliams was discharged and the mortgage in favour of the Italian Canadian Savings and Credit Union Ltd. was registered. Ms Stephens stated that at no time was she ever involved with the money from the Credit Union. It was Mr. McWilliams who handled it. This was the reason she decided to open a joint bank account with Mr. McWilliams.

[30] Ms Stephens testified that when Mr. McWilliams entrusted her with both these properties in the manner he did, she felt valued and that it was all part of the healing process after suffering with cancer and depression. She testified that she never had any financial interest in the properties, never paid property taxes and has no recollection of whether there were expenses that flowed from owning the two properties.

[31] Ms Stephens agreed she had access to vehicles and the vehicles were registered in her name. According to Ms Stephens, she did not buy them and believed that in order to be insured on a vehicle it had to be registered in her name. She testified that it was Mr. McWilliams who purchased the vehicles and registered them in her name. The trailer registered in her name was a surprise to her. She testified that Mr. McWilliams bought it for her so she had a place to do her artwork.

[32] Ms Stephens testified that during the time she received support payments from the Ontario Disability and Support Plan, she was gifted some money to help with her medications but never received any business or employment income. She testified she understood her obligations and responsibility to disclose all financial information about herself to the Ontario Disability and Support Plan. She testified that she told officials at ODSP about the large damage award she was going to receive in relation to a car accident she was in years earlier. She testified she did this because she understood her obligations to advise the agency of any potential income.

Legal Framework

[33] In this case, Marie Stephens is presumed to be innocent, unless and until the Crown has proven each essential element of the offence of fraud beyond a reasonable doubt.

[34] I must be satisfied, therefore, that the Crown has proven beyond a reasonable doubt that Marie Stephens had the mens rea to commit the offence of fraud over $5,000.00 and also be satisfied that the Crown has established beyond a reasonable doubt the actus reas of fraud over $5,000.00.

[35] If I believe the evidence of Ms Stephens, I must acquit. If I do not believe the testimony of Ms Stephens but am left in reasonable doubt by it, I must acquit. Even if I am not left in doubt by the evidence of Ms Stephens, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of Ms Stephens.

The Law

[36] R. v. Theroux, (1993) 79 C.C.C. (3rd) 449 S.C.C. and R. v. Zlatic, (1993) 79 C.C.C. (3rd) 466 S.C.C. are the leading Canadian cases setting out the actus reas and mens rea for the offence of fraud. In Theroux, supra the Court sets out the following regarding the actus reas for criminal fraud:

1. It consists of 2 elements: a dishonest act and deprivation;

2. The dishonest act is established by proof of deceit, falsehood or other fraudulent means; and

3. The element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act.

[37] In R. v. Zlatic, supra the Supreme Court discussed the concept of "other fraudulent means" and indicated that non-disclosure of important facts can be considered other fraudulent means.

[38] The Supreme Court of Canada in Theroux, supra also sets out what the proper mens rea is in the context of a fraud. At para. 24 Justice McLaughlin states:

"the mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood, or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown the crime is complete. The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence. To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence (see Williams, supra c. 3), the proper focus of determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation)."

[39] Justice McLaughlin goes on to state at para. 25 that this also applies to "other fraudulent means". She states:

"The 'dishonesty' of the means is relevant to the determination whether the conduct falls within the type of conduct caught by the offence of fraud; what reasonable people consider dishonest assists in the determination whether the actus reus of the offence can be made out on particular facts. That established, it need only be determined that an accused knowingly undertook the acts in question, aware that deprivation, or risk of deprivation, could follow as a likely consequence."

[40] Mens rea of fraud is established therefore by proof of subjective knowledge of the prohibited act and subjective knowledge that the prohibited act could have as a consequence the deprivation of another, which deprivation may consist in knowledge that the victim's pecuniary interests are put at risk.

[41] Mr. Henderson, on behalf of Ms Stephens, provided the Court with the case of R. v. Parise, [1996] S.C.J. No. 96 (S.C.C.). I have read both the trial judgment and the judgment from the Supreme Court of Canada. Mr. Henderson argues that this case is on all fours with the case at bar and I ought to follow it. In that case, the accused was a welfare recipient. She disclosed to the authorities that she owned a property. What she did not disclose to the authorities was that she sold the property. She also did not disclose that she lived with a man for a number of years who was employed. She testified that her financial situation was completely unchanged by her living arrangements with the male. The trial judge acquitted the accused because he determined there was no loss to the Ministry because the new financial information caused no change to the accused's financial circumstances. The Ministry already knew about the property and the Court accepted that the employed man residing with her maintained his own finances, therefore, there was no effect on the accused's financial situation. The trial judge did find, however, that the accused had the requisite mens rea to commit the dishonest act of non-disclosure but still acquitted her because there was an absence of deprivation. The Supreme Court of Canada upheld the trial judge's decision but not for the reasons as set out by the trial judge. Justice Sopinka agreed that the appellant's conduct did not create a risk of deprivation. He goes on to say:

"We are satisfied that the trial judge accepted the evidence of the appellant that she honestly believed that her circumstances had not changed so as to affect her entitlement to income assistance. In view of this finding, an essential element of the mens rea for the offence was negated."

[42] In other words, it was not just the lack of deprivation. The Court found there was no change in circumstances because the Court accepted the accused's honest belief.

[43] I have also been provided with the Ontario Disability Support Program Act, 1997. It is a comprehensive Act and sets out the financial obligations of the client and financial obligations of the agency. It is agreed that financial eligibility for ODSP is completely dependent upon the sections in this statute. The Act sets out eligibility requirements, asset levels, allowable assets and definitions of dependents. It is a comprehensive statute that requires a wealth of information to ensure it is applied properly.

Analysis and Findings

[44] Mr. Ishak argues the Crown has proved beyond a reasonable doubt that Ms Stephens committed fraud. He argues that Ms Stephens knew about her disclosure requirements under the Act and deliberately failed to disclose pertinent financial information resulting in a financial loss to the agency. The Crown argues that Ms Stephens' explanation for her finances, specifically her assets and business income, is nonsensical and is not worthy of belief. Mr. Ishak argues that it is impossible for the Crown to provide a back-dated calculation for a 10-year period based on information received in 2007. He argues her non-disclosure is a direct violation of s. 12(1) of the Act. That section states the Director shall deem an applicant or recipient ineligible when proper financial disclosure is not made. Mr. Ishak therefore argues given her failure to disclose relevant financial information, Ms Stevens deprived the agency of $107,442.24.

[45] Mr. Henderson argues that Ms Stephens does not have the required mens rea for committing the offence of fraud. He argues that she may be guilty of negligent misrepresentation but not criminal fraud. He argues that Ms Stephens provided her evidence in a credible and forthright manner. He argues that she was not undermined in cross-examination and provided consistent explanations for her non-disclosure. He argues that Ms Stephens' evidence ought to raise a reasonable doubt regarding her honest belief, that is, she honestly believed she was not required to disclose information about property and assets that did not belong to her.

[46] Mr. Henderson argues further that the Crown has failed to prove beyond a reasonable doubt that there was an actual loss or a risk of loss to the Ontario Disability and Support Plan. He argues that the legislation is rigid and specific regarding the calculation of benefits for clients. He points out that there are many allowable assets and incomes that can be excluded from calculating a client's allowable asset level. He argues that in some circumstances a client can own a home, own a car, work and still be in receipt of Ontario Disability. He argues this is important because had Ms Stephens disclosed all her financial information, she may still have been eligible for Ontario Disability. He argues that it was incumbent on the Crown to have extracted evidence from some of the caseworkers to demonstrate that Ms Stephens' financial circumstances would have been different with this new financial information. He argues that without this evidence, the Crown has failed to prove a loss or risk of loss to the Ontario Disability and Support Plan. Mr. Henderson argues, therefore, the Crown has not established beyond a reasonable doubt the actus reus required for the offence of fraud.

Credibility Assessment

[47] I do not believe Ms Stephens nor does her evidence raise a reasonable doubt in my mind about her honest belief of why she did not disclose certain financial information to the Ontario Disability and Support Plan. I find her evidence to be self-serving and find that she understated her knowledge about her responsibilities to the Ontario Disability and Support Plan. Ms Stephens is an astute businesswoman who has suffered some personal health issues. She is not, in my view, a naive vulnerable woman to be taken advantage of. She is educated, attended an apprenticeship program in electrolysis and operated a successful business for several years before she fell ill with cancer. In the course of that business she purchased equipment, arranged for loans and developed a reputation in the electrolysis community. She agreed that when "Ingrid's Place" started operating, she acted as a consultant because it was her reputation in the field that brought in business. This demonstrates past business successes. Also, within a short period of time after her suspension from ODSP, she started up another business. She purchased a property, along with her friend Mr. McWilliams, to live in and operate her new business out of. She also purchased an investment property. This all demonstrates the actions of a smart businesswoman.

[48] Ms Stephens knew she had a responsibility to disclose all her financial information to the Ontario Disability and Support Plan and knew that if she did not disclose all of her financial information, support and benefits could be compromised. She signed many Rights and Responsibilities Forms demonstrating her understanding. She testified that at times she did not always understand what things meant because of her clinical depression. I do not accept this. The forms are clear, the client's obligations are clear and at no time did Ms Stephens ask for clarification or appear not to understand. In my view, Ms Stephens understated her level of knowledge and understanding of her obligations.

[49] Ms Stephens testified that she did not disclose the properties or the businesses to ODSP because she did not own property and did not derive income from the businesses. This makes no sense. Ms Stephens operated a viable business for years. She went through what she described as an ugly bankruptcy. It is illogical to think that after having experienced all of the positive and negative things in the business world that she honestly believed she was not required to disclose to ODSP that she was the registered owner of two properties, multiple vehicles, a business account, a joint account and businesses operating out of her own home. Even if the income and assets were for therapeutic reasons and out of friendship, which I do not accept - why not tell the authorities about them if only to avoid potential misunderstandings so she will not have to endure another ugly experience.

[50] I do not believe Ms Stephens when she says that her healing process was ameliorated by the support Mr. McWilliams showed by trusting her with title for the properties at 1872 Queen Street East, Toronto and 58 Joseph Street, Port Carling. Ms Stephens was not a passive person in the purchase and sale of the properties. She made arrangements with mortgage brokers and she contacted real estate agents to purportedly assist Mr. McWilliams with the purchase of both properties. These actions are hardly the actions of a naive woman simply looking to heal. The promissory note and Power of Attorney signed in favour of Mr. McWilliams are curious. Given the friendship that she has described with Mr. McWilliams and all the gifts and care that he has extended her, I fail to see how the documents were necessary. Further, Ms Stephens could have revoked either one of them at any time. I also note the Power of Attorney was executed July 16, 2007, some 5 years after the purchase of the property at 1872 Queens Street East and shortly after Ms Stephens was deemed to be no longer eligible for benefits from the ODSP. Given that I do not believe Ms Stephens, I place no weight on either document.

[51] In addition, I find it curious that the two properties and all the financial documents relating to the properties were registered in the name of Ingrid Stephens and all the paperwork she provided to the Ontario Disability and Support Plan was in the name of Marie Stephens. Ms Stephens' explanation that her middle name is Ingrid and that family and close friends call her Ingrid makes no sense. Why register two distinct properties in a name that is reserved for close friends and family. In my view, she was hiding this information from the Ontario Disability and Support Plan.

[52] I also do not accept that Ms Stephens' role in "Ingrid's Place" at 1872 Queen Street East was therapeutic in nature. Ms Stephens registered the business name in April 1998. She opened a business account in the name of "Ingrid's Place", a viable business. She was the primary cardholder. Regular monies were going in and out of the account. "Ingrid's Place" operated as an electrolysis business and then changed to a holistic bed and breakfast operation. She brought in clients, sat with clients, and acted as a consultant. It defies credulity that she would derive no income. I do not accept that a person would take such elaborate business steps for therapeutic reasons only.

Mens Rea and Actus Reus

[53] Ms Stephens knew her obligations to disclose and knew that her financial eligibility could be compromised by not reporting all pertinent information. I do not accept that Ms Stephens sincerely believed she was not required to disclose financial information in relation to the properties, bank accounts, vehicles and businesses. She knew what she was doing. By not disclosing, she put the agency at risk of deprivation. Whether the possibility existed that the finances to be disclosed would have had no effect on her benefits, is not the issue in my view. Ms Stephens had significant assets and bank accounts which she was required to disclose in order for the Ontario Disability and Support Plan to confirm continued eligibility. This case is very different from the facts in R.v. Parise, supra. I cannot say that her non-disclosure would result in no change to Ms Stephens' financial circumstances. Ms Stephens was required to disclose and she purposively did not. Section 12(1) of the legislation sets out:

"12.(1) The Director shall determine that a person is not eligible for income support if the person fails to provide the information the Director requires to determine initial or ongoing eligibility for income support, including information with respect to,

(a) new or changed circumstances;

(b) disability or membership in a prescribed class;

(c) the receipt or disposition of assets; and

(d) the receipt or expected receipt of income or some other financial resource. O. Reg. 222/98, s. 12(1)."

[54] I do not accept that this section is prospective in nature. It is a requirement by statute that applicants and recipients have an initial and ongoing obligation to disclose financial information to confirm eligibility for support of public monies. Her deliberate non-disclosure therefore caused the Ontario Disability and Support Plan to suffer a deprivation. The crown has proven beyond a reasonable doubt the mens rea and the actus reas of the offence of fraud over $5,000.00 and Ms Stephens will be found guilty.

Released: May 30, 2012

Signed: Justice Rebecca Rutherford