Court File and Parties

Court File No.: Regional Municipality of Durham: 998 12 01809 Date: 2013-05-28 Ontario Court of Justice

Between: Her Majesty the Queen — and — J.T.

Before: Justice J. De Filippis

Heard: April 17, 2013

Reasons for Judgment Released: May 28, 2013

Counsel:

• Mr. Malleson for the Crown
• Mr. Adamson for the Defendant

Judgment

De Filippis J.:

[1] The defendant was tried on a charge of failure to comply with probation by not paying restitution in the amount of $2,023.15 by the end of the three-year term of the order. Ms. Darlene Poulias was assigned to be the defendant's probation officer. She reviewed the probation order with the defendant, including the provision for restitution and explained the consequences of non-compliance. The defendant signed an acknowledgment that she understood. The probation order expired on 19 July 2012. Nothing was paid by way of restitution.

[2] The transcript of proceedings before Justice Wakefield reveals the following: The defendant pled guilty to fraud, communicating for the purposes of prostitution, failure to comply with a recognizance, and possession of a controlled substance. She waived her right to a Gladue Report and joined the Crown in submitting that the appropriate sentence was to note the 14 days pre-sentence custody and the imposition of a three-year period of probation on terms that included restitution. Defence counsel (not Mr. Adamson) advised that the defendant had "acquired a dreadful addiction" and was looking forward to counselling. The parties did not agree about whether the restitution order should be "part of probation" or "stand alone". The Crown sought the former. In opposing this, Defence counsel stated that "at this time she really has no ability whatsoever to make any payments". Justice Wakefield noted that the victim of the fraud was an elderly person who had trusted the defendant and directed that the restitution be part of the probation order. Justice Wakefield told the defendant that while he accepted that she could not pay "at this point in time…there should be some responsibility for you to pay at least some of this back". The court concluded that there was an ability to pay in the longer term and directed that the total amount of restitution be paid by the end of the three-year period. The Crown agreed with this and pointed out that if the defendant encountered difficulties she could apply to vary the order.

[3] Ms. Poulias testified that within the first nine months of the probation order, the defendant stated several times that she had made partial payments and would produce receipts to confirm this fact. Receipts were never produced. This conversation between defendant and probation officer continued until May 2011 at which point the probation officer encouraged the defendant to make monthly payments. The defendant promised her that restitution would be paid in full. On 6 October 2011, the defendant admitted to Ms. Poulias that no payments had ever been made. She again promised to make payments. By April 2012 she had not yet done so. Ms. Poulias warned the defendant that full restitution was due within three months. On 3 July 2012, the defendant was again advised that the probation order expired on 19 July 2012. The defendant was charged with the present offence shortly after.

[4] Ms. Poulias testified that she did not feel the need to go behind the defendant's promises to pay. She said the ability of the defendant to pay was a matter for the sentencing judge and her role was to enforce the order. However, Ms. Poulias was not consistent in this approach. The probation order also required the defendant to report as required and abstain from the use of illicit drugs. Ms. Poulias testified that the defendant breached both terms. In the first year of probation, the defendant missed and had to reschedule 21 reporting appointments. This happened 19 times in the second year and 10 times in the final year. During this time, the defendant admitted she was using crack cocaine and selling herself as a prostitute to support the habit. Ms. Poulias confirmed that the defendant had lost weight and had lesions on her face from "picking at it when craving crack". Ms. Poulias did not lay breach charges because of reporting problems and use of crack. With respect to the latter, she decided to "encourage rehabilitation through the counselling term" in the probation order.

[5] When initially reviewing the probation order with the defendant, Ms. Poulias advised of the right to apply to vary the terms. However, at no time did she specifically discuss the option of applying to vary or delete the restitution term. Ms. Poulias conceded that it would have been preferable to do so and explained that she simply accepted the defendant's repeated assurances the term would be complied with. She accepted this even though she did not know the defendant's income and expenses; that is, her ability to comply. Defence counsel criticized her for this because "it was obvious [the defendant] was destitute". Ms. Poulias replied that the defendant "said she was on social assistance and could pay restitution and I kept reminding her and she did not do so and that is why we are in court today".

[6] The defendant is 39 years old and identified herself as Metis. She was born in Saskatchewan and raised in that province as well as Alberta. She left school after grade 10 and has a "limited work history". Her mother lives in Oshawa but she has no relationship with her father. The defendant has three younger siblings, none of whom have "addiction issues". The defendant testified that she has six children and one grandchild. She had her first child at the age of 14. Her children are now 25, 20, 19, 18, 15, and 14 years old. The oldest is a "drug addict" and lives with the defendant. The next three oldest were seized by the Children's Aid Society after the defendant admitted she could not care for them because of her crack addiction. These three are apparently doing well and in college. The 14 and 15-year-old children live with their father in Saskatchewan.

[7] The defendant said she began to use marijuana and hashish at the age of 12 or 13. After some years she abused "pills – dilaudid, morphine, whatever" and then went on to snorting cocaine. About five years ago she started smoking crack. The defendant described the latter as the worst addiction; "when without crack all I did was think about crack – it took everything away, including my children". She turned to prostitution to support this habit and added that the marks on her face from picking at it in times of craving made it more difficult to "get dates". This meant she sometimes had to "walk up to 12 hours", an effort made painful because of her arthritis.

[8] The defendant testified that she always wanted to pay the restitution and lied to the probation officer about periodic payments because she was ashamed of her inability to comply with the term and fear Ms. Poulias would be upset with her. The defendant stated she "owns nothing, except the clothes on my back". She admitted spending between $80.00 and $160.00 a day on crack "depending on her dates". Accordingly, the defendant spent $2,400.00 to $4,800.00 per month on crack during the three years she was on probation.

Legal Analysis

[9] The defendant cannot answer this charge by asserting the term in question is unreasonable or should not have been imposed. That would amount to a collateral attack on the probation order. Such an attack cannot be entertained: See R v Swiston, [1999] O.J. No. 3765. Defence counsel conceded this and argued that his client should be acquitted because she "simply could not comply with the order". He also claimed the probation officer turned a blind eye to this and failed in her duties to properly supervise. The Crown submitted that the defendant could have complied with the probation order—at least by making partial payment—if she had not spent all her money on crack cocaine.

[10] In R v Custance, 2005 MBCA 23, it was noted that, "Courts generally take a hard look at the lawful excuses, and compliance must be virtually impossible". This begs the question whether poverty rises to this high threshold?

[11] The issue of poverty in a case of this kind was considered in R v Crowe, 2003 SKQB 536, (paragraphs 11–15):

Mens rea is an element of an offence under s. 733.1 of the Criminal Code and it can usually be inferred from the accused's failure to comply with the probation order at which point the onus shifts to the accused to provide evidence of a reasonable excuse. If evidence of a reasonable excuse is provided, then the necessary mens rea is negated. It is a question of fact in each case whether that occurs.

In this case there is no doubt that Mr. Crowe was in a situation of abject poverty. The Court does not agree with the appellant's position, however, that inability to pay alone is sufficient to raise a reasonable excuse pursuant to s. 733.1 of the Criminal Code and thereby negate a finding of mens rea. Justice Klebuc, at para. 12 of the Bird decision stated as follows:

...While the necessary mens rea may be inferred from the "actus reus", such inference may be discharged by evidence of a reasonable excuse. An inability to pay restitution because of abject poverty with no realistic employment opportunity in my view constitute a reasonable excuse for noncompliance which negates the required mens rea.

In Bird, the inability to pay was coupled with no realistic employment opportunity. This is consistent with the findings of the Queen's Bench Court for Alberta in R. v. Huszti ….At para. 7 of that decision, the Court made reference to the fact that the appellant's default in making restitution was not intentional because it was caused by an inability to pay resulting from circumstances beyond her control.

In this case, Mr. Crowe was on social assistance and looking for work when the probation order was made on July 31, 2002. The comment of Justice Moshansky of the Alberta Queen's Bench in R. v. Huszti, supra, is worthwhile repeating here. Those comments, at para. 29, were as follows:

... this case graphically illustrates the desirability, indeed the obligation, for a sentencing court to make the fullest inquiry as to the personal financial circumstances and ability to pay of an accused person before imposing restitution as a condition of probation, and for the court not to impose such a condition where the probability is high, as was clearly the case here, that, because of impoverishment, the accused will be unable to meet that condition....

Mr. Crowe's probation order is not under review here. It must be assumed that the probation order was correctly made. Individuals who consent to restitution orders gain a benefit from doing so, often avoiding incarceration or fines as a result. In this case, Mr. Crowe was on social assistance and looking for employment when the probation order was made. He was taken to know the obligation that he undertook. He indicates that he agreed to the restitution order because he believed a job opportunity would be forthcoming. When that job opportunity did not materialize the Court must ask itself what responsibility Mr. Crowe then had to comply with the order. Could he avoid his obligations simply by sitting back and saying "I have no ability to pay". Is that a reasonable excuse?

While there was no evidence to substantiate the trial judge's assumption that Mr. Crowe could have cut lawns, shovelled walks, babysat, done spring clean up or obtained chainsaw related work, there was evidence that supports the trial judge's finding that Mr. Crowe did not make adequate efforts to find a job. The evidence establishes that Mr. Crowe only applied for three jobs in the year prior to trial, that he had been employed in the past doing both odd jobs and working with a chainsaw, that he could work off the Reserve and that he had some marketable skills, including chainsaw and firefighting certificates. As such, there is certainly evidence that his excuse of inability to pay may not be reasonable. When put to a properly instructed jury, this evidence could result in the verdict given in this case. The trial judge did not accept Mr. Crowe's excuse of abject poverty as being reasonable. It was offset by Mr. Crowe's own evidence of failure to actively pursue employment. If this Court were to find otherwise, it would open a floodgate and enable individuals subject to restitution orders to receive the benefit of such orders but avoid the obligation by simply claiming inability to pay. Inability to pay alone is not enough. An accused must also establish that the inability is beyond their control either by reason of a lack of employment opportunities, incarceration, ill health, or for other cause.

The appeal is dismissed.

[12] On the other hand, R v Crosswell, 2007 ONCJ 25 may be an example of a different approach (paragraphs 4–9):

Mr. Crosswell was unrepresented, and I am grateful to the Crown, Mr. Hannah-Suarez, for his research on the change in the wording of the breach provisions. Previously, the Criminal Code required that a breach of probation be committed "wilfully", but that wording has now been changed to a breach committed "without lawful excuse".

I agree with Justice Gorman in R. v. C.D.C. that notwithstanding the removal of the term "wilful", the Crown must still prove that the accused's act of non-compliance was voluntary and intentional. He explained it in this way:

... in the context of the offence of breach of probation, if it is established that the accused intentionally committed an act or refrained from doing something prescribed by the probation order, than a conviction will follow unless he or she establishes a reasonable excuse for having done so. The accused's moral blameworthiness lies in intentionally committing the actus reus.

Applying that reasoning here, I find that the Crown must prove that Mr. Crosswell's failure to pay was a voluntary act; in other words, that his failure to pay was an intentional choice made by him. Mr. Crosswell's claim that he wanted to pay but couldn't, must also be assessed in accordance with the well known principles set out by the S.C.C. in R. v. W.(D.).

In this case I tend to believe Mr. Crosswell that he was unable to pay the instalments of $100 a month that he was ordered to make, and I have a reasonable doubt that he intentionally failed to make restitution. He testified that he wanted to make restitution and intended to pay the money back, but said he simply couldn't afford to. He said that he didn't have a job, and then when he got a job it was temporary, and his pay was deducted from any social assistance he received. His probation officer also confirmed that she understood that Mr. Crosswell was only working sporadically, and she noted that he was often moving or had no fixed address, and had no telephone: all indicators of someone with little means to support himself, let alone pay a substantial restitution order.

If I am wrong in law about the onus, and if there is any burden on Mr. Crosswell to show that he acted reasonably, I agree with the Crown that he has not done so. Mr. Crosswell made no payment at all, not even a small good faith one that he probably could have managed somehow when he was working. Moreover, he failed to make reasonable efforts to vary the restitution order, even though his probation officer had advised him that he could do so. In short, Mr. Crosswell did not show due diligence to ameliorate the situation, and if that were the test, I would have found him guilty.

However, in my view this is still a true criminal charge and the Crown must prove the failure to pay was voluntary and intentional despite the removal of the word "wilful" in the section. In this case I am left with a reasonable doubt about Mr. Crosswell's ability to pay the instalments of $100 a month, and in the circumstances I do not find the Crown has proved his failure to make the restitution was voluntary or a deliberate choice.

[13] I am not certain if Crosswell defines the mental element of this offence differently than Crowe. To the extent that it does, I decline to follow it. In my view, Crowe correctly sets out the law with respect to proof of failure to comply with probation. In any event, does it matter if the defendant makes partial payments, short of full restitution? This issue was addressed in R v Strong, [2005] N.J. No. 431 where it was held that partial payment of restitution can amount to a reasonable excuse if the offender could do no more because this demonstrates a sincere intent to comply.

[14] The Crown relied on Strong for the proposition that the defendant's failure to make even partial restitution negates any suggestion of reasonable excuse due to poverty. Defence counsel opposed this argument by reliance on R v Kelly, unreported, District Court of Ontario; 1988 (Court File # 4271/88). In that case the defendant sought the dismissal of a breach probation charge for failure to pay restitution because he could not afford to pay the amount in question. The trial judge agreed but convicted because he found the defendant could have paid more than he did. Judge Lovekin reversed and quashed the conviction because it was not based on the charge before the court. He noted that the charge alleged a failure to comply with an order to make restitution in the amount of $3,000.00 and added; "To uphold the conviction in this case would be to expand the charge as laid to read '…and in the alternative he failed to make such payments as his financial means should have enabled him to make'". Having regard to my conclusion in this matter, I need not resolve any conflict between Strong and Kelly.

[15] Defence counsel pleaded that the defendant "lost everything to crack" and added that "nobody is poorer in spirit and material things. Crack addiction is a slow suicide". Counsel also submitted that the probation officer's negligence contributed to the defendant's failure to comply. In this regard, the officer is charged with performing a "disgraceful job" in focusing on what the defendant owed, ignoring her ability to pay, and failing to bring the case back to Justice Wakefield for variance. This submission, it is said, is bolstered by the officer's awareness that the defendant was non-compliant with several terms of the order and had lied about payments made and promised.

[16] I accept that abject poverty can amount to a reasonable excuse not to comply with an order to pay restitution as part of probation. In this regard, I note the comments in R. v. Huszti, [1998] A.J. No. 1520:

Repeat criminal convictions of an impoverished accused for an offence that is rooted in the original offence which led to the accused's first conviction, does not advance the complainant's recovery of the indebtedness, nor does it serve the cause of a fair and just criminal justice system. If anything, the repetitive criminalization of an accused for reasons rooted in the poverty of the accused serves to bring disrepute upon the justice system.

However, it will be a rare case in which poverty provides a defence. As Custance makes clear, non-compliance must be "virtually impossible". Moreover, a person who wants to comply but cannot do so has the right to ask that the probation order be varied.

[17] Justice Wakefield found that the defendant could, with difficulty, make restitution over three years. This difficulty was made impossible by the defendant's continued use of crack cocaine. Like most criminal judges, I am well aware of the terrible suffering endured by drug addicts. It is often said that addiction is a disease. It must also be said that it is usually a self-inflicted one. In so stating, I am mindful that addiction can be a symptom of other serious personal issues.

[18] The present case is not simply one that highlights the tension between poverty and ability to pay restitution. It is complicated by the fact that the defendant repeatedly lied about having made partial payments and in promising to do so in future. These falsehoods continued notwithstanding the defendant knew she could apply to vary the restitution term in the probation order. In all these circumstances, I find the defendant did not have a reasonable excuse for non-compliance. I come to this conclusion notwithstanding any failure on the part of the probation officer.

[19] Defence counsel is correct in stating that the probation officer could have done more than she did to supervise the defendant. However, I do not accept the suggestion that her performance contributed to the defendant's failure to comply. In this regard, I must repeat that the defendant kept promising to make payments and was aware of her right to apply for a variance. By the third year of the probationary term, the officer should have known the defendant would not make full restitution but her failure to do anything beyond reminding the defendant of her responsibilities does not absolve the latter of them.

[20] The defendant is guilty of the offence.

Released: May 28, 2013

Signed: Justice J. De Filippis