Court File and Parties
Court File No.: 14-9355 Date: 2017/06/13 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Andrea Alexis Long, Accused
Counsel: Brian Bencze, for the Crown Michael Smith, for the Accused
Heard: January 9, 10, 12, 13 and 31, 2017
Reasons for Decision
Sheard J.
[1] Andrea Alexis Long is charged that between the 1st day of June 2007 and the 31st day of December 2009 at the City of Ottawa in the East Region did, by deceit, falsehood or other fraudulent means, defraud Ontario Works, City of Ottawa Community and Social Services, of a sum of money of a value exceeding $5000.00 contrary to section 380, subsection (1), clause (a) of the Criminal Code of Canada.
Overview
[2] The allegations relate to Ms. Long’s successful applications for Ontario Works (“OW”) in June 2007 and again in September 2009. It is alleged that between June and September 2007 and between September and December 2009, Ms. Long deliberately failed to report to OW income she received from her employer, Rogers Communications Inc. (“Rogers”). It is alleged that Ms. Long knew of her obligation to disclose to OW her income and that she deliberately failed to disclose that income to OW in order to receive OW benefits for the relevant periods, with the intention of defrauding the City of Ottawa.
[3] In the summer of 2013, Ms. Long moved to Quebec and needed to close her OW file in order to open a file with the Quebec Ministry of Community and Social Services. As a result, an investigation was conducted by OW which disclosed that Ms. Long had been receiving income from Rogers while she was receiving OW benefits.
[4] For the reasons that follow, based on the evidence of Kevin Smith, Deborah A. Dyer, Audrey Kaufman, Karen A. Tremblay, and of Ms. Long, I am satisfied beyond a reasonable doubt of the guilt of Ms. Long and I find her guilty of the charge laid against her.
Background and Facts
[5] Ms. Long was born in Canada and at the time of trial, was a 39 year-old single mother of five children. Ms. Long’s children range in age from 16 to twins aged 4 at the time of trial. She has a college education and a degree from Herzing College as a legal assistant. She has no criminal record.
The 2007 Events
[6] On June 18, 2007, Ms. Long completed an application to OW for assistance under the Ontario Works Act, S.O. 1997, C. 25, Sched. A. The application began with a telephone intake interview on June 14, 2007 between Ms. Long and a K Lawlor of OW.
[7] OW maintains an electronic file for each OW applicant (the “EF”), which is available to OW intake workers, case workers, and other related OW staff. Portions of Ms. Long’s EF were made an exhibit at trial. The EF contains notes made by Ms. Long’s OW caseworkers and other OW employees who had dealings with Ms. Long and/or her OW application.
[8] The EF shows that on June 14, 2007, K. Lawlor received a telephone call from Ms. Long. In that call, Ms. Long told K. Lawlor that she had lost her job on May 29, 2007 and that she was seeking employment and financial assistance. Ms. Long provided details of her living expenses and disclosed that she had a roommate who paid $400.00 per month. K. Lawlor noted that Ms. Long declared that she had been working at Rogers in Customer Service at $14.58 per hour but that as of June 14, 2007 the only income Ms. Long was receiving was the National Childcare Benefit Supplement (“NCBS”). No health issues were declared. At trial, Ms. Long was asked to look at these EF notes and initially confirmed that they were accurate. Ms. Long later changed her evidence on that point.
[9] On June 18, 2007, Ms. Long met with Deborah A. Dyer, an experienced case co-ordinator with the City of Ottawa. A case co-ordinator determines eligibility for the OW program. In that meeting, Ms. Dyer reviewed the standard application for OW assistance (the “OW Application”) with Ms. Long and she provided Ms. Dyer with information concerning her living and financial circumstances. The information provided by Ms. Long about her employment is relevant to the criminal charge. At page 6 of the OW Application, Ms. Dyer recorded that Ms. Long was last employed with Rogers on May 27, 2007. The information on the OW Application is consistent with the notes made in the EF by Ms. Dyer and those made by K. Lawlor respecting the June 14, 2007 telephone interview.
[10] Page 13 of the OW Application warns the applicant of the obligation to honestly report any changes in their income, assets, and living arrangements. The OW Application also specifically refers to section 380 (1) of the Criminal Code, R.S.C., 1985, c. C-46 (the “CC”) and states that everyone who by deceit, falsehood or other fraudulent means, defrauds the public of any property, money or valuable security is guilty of an offence and that if there is sufficient evidence to suspect that fraud, the matter may be referred to the police for investigation.
[11] June 2007 was not the first time Ms. Long applied for OW benefits. Ms. Long acknowledged that she was very well-versed in her OW rights and obligations long before her meeting with Ms. Dyer in June 2007.
[12] In her evidence, Ms. Long acknowledged that the OW Application and the other OW forms that she signed in 2007 and in 2009 had been thoroughly reviewed with her by her caseworkers. Ms. Long understood what she signed and, in particular, she understood her obligation to disclose any income to OW. Ms. Long also confirmed that she had also been required to watch a video that outlined her OW rights and obligations.
[13] The evidence leaves no doubt whatsoever that at all times material to the criminal charge, Ms. Long fully understood her rights under OW and her obligation to fully disclose her income.
No income disclosed on the 2007 OW Application
[14] At page 5 of 14 of Ms. Long’s 2007 OW Application, she reported zero income. Ms. Dyer’s evidence was that she asked Ms. Long about employment insurance or sick benefits and that Ms. Long said that she received neither. Ms. Dyer stated that this was important information as these were treated as income for the purposes of OW. Ms. Dyer stated, and the OW Application and other OW forms signed by Ms. Long show, that Ms. Long declared nothing under the heading “current earnings”. According to Ms. Dyer, she understood that Ms. Long was on medical leave as at June 18, 2007.
[15] Page 8 of the OW Application, Box 10 is marked “Y”, identifying that Ms. Long had other financial sources/income to which she might be entitled. Ms. Dyer’s evidence was that Box 10 was marked with a “Y” because Ms. Long still had a job with Rogers but was simply off on medical leave.
[16] At the June 18, 2007 meeting, Ms. Dyer also reviewed with Ms. Long a three-page Participation Agreement, signed by Ms. Long. Ms. Dyer explained that the Participation Agreement granted Ms. Long a deferral to October 31, 2007 of Ms. Long’s obligation to participate in activities such as looking for work, working, or going to school, otherwise required by OW recipients. Ms. Dyer stated that she granted Ms. Long this deferral because Ms. Long was on a medical leave and had children under school age.
[17] Ms. Dyer stated she expected Ms. Long to disclose if she had returned to work and was earning an income. For the reasons described above, Ms. Dyer did not expect Ms. Long to return to work prior to October 31, 2007. Ms. Dyer stated, as acknowledged by Ms. Long, that she expected Ms. Long to contact OW if there were any changes to her situation, and, of course, any change in Ms. Long’s income.
[18] The evidence is clear, and Ms. Long does not assert otherwise, that the deferral did not relieve Ms. Long of her obligation to disclose income to OW.
[19] On June 18, 2007 Ms. Long also signed a Consent to Disclose and Verify Information, and a Rights and Responsibilities form. The Rights and Responsibilities form clearly states that the applicant is to contact the worker if they begin to receive income or if their income changes. It also repeats the warning found in the OW Application that everyone who defrauds the public of any property is guilty of an offence under the CC.
[20] Ms. Dyer identified her handwritten calculations of the amount that Ms. Long would receive in OW benefits found at page 3 of Ms. Long’s Rights and Responsibilities form. Ms. Dyer stated that she provided this payment information to Ms. Long.
[21] On June 18, 2007 Ms. Long also signed a Declaration of Support/Maintenance. This was required because she had children for whom she was entitled to receive support. Ms. Long reported that she received $0 in support from the father of her children.
[22] Also at the June 18, 2007 meeting, Ms. Dyer completed an Employment Assessment Action Plan for Ms. Long. The Plan was not signed by Ms. Long but Ms. Dyer’s evidence was that she completed it based on information she received from Ms. Long. The Plan states that Ms. Long was on a leave of absence from Rogers due to “personal medical problems”. It also recorded that Ms. Long’s employment at Rogers was in customer service; that she had a legal assistant diploma from Herzing College; that Ms. Long spoke English and French; that she had first worked for Rogers on November 6, 2006 but that she was not eligible for, nor had she received, regular EI benefits or maternity benefits in the prior three years; and that Ms. Long was prevented from finding and keeping a job due to “medical issues”.
[23] Ms. Dyer spoke with Ms. Long on July 30, 2007, who advised that she would be returning to work “ASAP” as she could not continue to endure the financial hardship she was under. As a result of that information, Ms. Dyer suspended Ms. Long’s OW payments effective September 2007.
[24] The EF shows a telephone call from Ms. Long on August 16, 2007 in which Ms. Long apparently reported that she had returned to Rogers but would not be paid for two weeks or more. Ms. Dyer stated that she determined to release the September 2007 OW payment to Ms. Long to avoid the hardship to Ms. Long of going without income for two weeks or more from August 16, 2007.
OW Benefits Paid June to September 2007
[25] Relying upon the information Ms. Long gave to OW, and, in particular, that she was not earning or receiving any income, OW benefits were paid to Ms. Long between June and September 2007.
[26] Kevin Smith, an Eligibility Review Officer with OW, reviewed the OW payment records for Ms. Long. His evidence was that between June and September 2007, Ms. Long received OW benefits totaling $4,810.41.
[27] Mr. Smith also testified that, in the first three months of receiving OW benefits, any income received by an applicant is deducted from the OW benefits, dollar for dollar. His evidence was that, had Ms. Long disclosed her income to OW, she would not have been entitled to receive any OW benefits. His evidence was that the $4,810.41 paid or credited to Ms. Long, was an overpayment.
[28] Mr. Smith explained that the OW’s calculation of the benefits paid to Ms. Long included payments made to Ms. Long directly, payments made to a third party, such as her hydro or gas supplier, and credits applied toward repaying earlier OW overpayments made to Ms. Long (unrelated to these events).
[29] In concluding that Ms. Long was not entitled to the OW benefits she received, Mr. Smith reviewed the income statement provided to OW by Rogers. It listed the amounts paid by Rogers to Ms. Long. Mr. Smith explained that eligibility for OW benefits is determined by looking at the applicant’s income received from the 16th of one month to the 15th of the month preceding the month in which the benefits are to be paid. So, to determine Ms. Long’s eligibility for OW in June 2007, OW would look at her income from April 16 to May 15, 2007.
[30] Using the payment information provided by Rogers, Mr. Smith’s evidence was that Ms. Long received the following income from Rogers:
Between April 16 and May 15, 2007 $3,300.08 Between May 16 and June 15, 2007 $2,441.34 Between June 16 and July 15, 2007 $3,405.59 Between July 16 and August 15, 2007 $1,057.26
[31] Mr. Smith explained that OW uses the gross income paid by an employer and then calculates the net income using its own internal software which calculates net income based on the statutory deductions that it allows. Mr. Smith’s evidence was that, based on the gross income paid by Rogers to Ms. Long, she was not entitled to any OW benefits for the months of June to September, 2007.
[32] The Rogers payroll records disclose that Ms. Long continued to receive income from Rogers for the pay periods ending June 16, June 30, July 14, and July 28, 2007. Ms. Long also received income from Rogers for the pay periods ending August 25, September 8, and September 22, 2007. This is compelling evidence that Ms. Long received income that she failed to disclose to OW.
[33] The EF entry for August 16, 2007 says that Ms. Long advised OW that she had returned to work at Rogers and that she told them she would not be paid for two weeks or more. In fact, the Rogers records show that, but for the pay period ending August 11, 2007, Ms. Long received bi-weekly payments from Rogers consistently from November 2006 to December 15, 2007. Despite that, at no time between June 2007 and September 4, 2007, on which date Ms. Long asked OW to close her file, did she ever disclose to OW the income that she had been receiving and expected to receive from Rogers.
[34] Given that Ms. Long was well-aware of her obligation to disclose her income and the reason for that obligation, that it directly affected her entitlement to OW benefits, I conclude that Ms. Long deliberately failed to disclose her Rogers income to OW in order to receive OW benefits and to defraud the City of Ottawa.
No income disclosed on the 2009 OW Application
[35] On August 11, 2009, Ms. Long again applied for OW. By that year, she had had a third child and was applying for assistance to tide her over until she received her first paycheque from Rogers. The application process in 2009 was very similar to that of 2007.
[36] According to the EF, on August 4, 2009 Ms. Long advised the telephone intake person that she needed help that month because her EI had ended and she was still awaiting her first pay. Ms. Long also asked for help with the purchase of work clothes.
[37] The EF shows that Ms. Long met with Audrey Kaufman, who works for the City of Ottawa as a case co-ordinator with OW. At the date of trial, Ms. Kaufman had been a case co-ordinator for 25 years. In her evidence, Ms. Kaufman confirmed that the meeting with Ms. Long took place on August 11, 2009 but as the EF entry was made the following day, the meeting date was incorrectly shown in the EF as August 12, 2009. The OW Application and related OW forms are all dated August 11, 2009 and I accept that the meeting took place on that date.
[38] Ms. Kaufman’s notes of the August 11, 2009 meeting recorded on the EF, state that Ms. Long told her that she had returned to work full time after her maternity benefits had run out. Ms. Long had daycare, the cost of which was to be “looked at” with her earnings.
[39] As noted on the EF, following her meeting with Kaufman, Ms. Long called OW on August 14 and again on August 17, 2009 to ask about her OW cheque. In the latter call, Ms. Long was told that a cheque had been released.
[40] The EF shows that on August 26, 2009, the August OW cheque was “on suspend” pending verification of Ms. Long’s last employment insurance stub and the amount of her first pay. The EF reads: “Client returned to work in early August.”
[41] The EF shows that Ms. Long telephoned and spoke with Ms. Kaufman on September 1, 2009 and reported that she was to be paid the following day “from her new job” but had to wait two weeks to get paid. As a result of this information, OW released a payment to Ms. Long in September 2009 but her case was again put “on suspend”, suspending the release of further OW payments effective October 2009, because Ms. Long had not provided earnings information. On September 30, 2009 OW sent a “suspend” letter to Ms. Long.
[42] The next entry on the EF was made by Karen Tremblay who received a telephone call from Ms. Long on October 27, 2009. Ms. Tremblay was not Ms. Long’s caseworker and did not carry a caseload herself. She filled in for caseworkers who were absent from work. Ms. Tremblay’s notes of that call are important to this case and read:
27/10/2009 - Curr./Prev. Employment - KTREMBLAY Telephone call from client stating that she only worked for one week when she returned to Rogers after her maternity leave. She states that due to illness she was unable to maintain her employment She states that she received $45 in earnings for that week and that it was her last pay SDMT income and expense list updated IRS requirements suppressed 27/10/2009 - PA-Participation information – KTREMBLAY Client unable to maintain employment at present due to illness Client states that she does not feel she would qualify for ODSP and does not wish to apply at present. Limitations to participation form mailed to client for completion by DR. 27/10/2009 - Details-KTREMBLAY File released from suspend as earnings issues have been resolved
[43] Ms. Tremblay’s evidence was that her notes of that telephone call were not verbatim but she believed they were accurate and captured the information given to her by Ms. Long. She stated that her notes indicated that Ms. Long told her that she had worked for only one week after returning to work following her maternity leave and that she had earned only $45.00 in September and October, 2009. Ms. Tremblay’s evidence is consistent with the evidence of Ms. Long who admitted that around August or September she told Ms. Tremblay that she did work “a week” with Rogers and could have been on short-term disability through work.
[44] On cross-examination Ms. Tremblay acknowledged that it was “possible” that she wrote the wrong amount when she noted that Ms. Long told her she had earned only $45.00. Despite that acknowledgement, Ms. Tremblay was not shaken in her belief that Ms. Long told her she had earned only $45.00 after her maternity leave. Ms. Tremblay noted that Ms. Long’s September earnings were relevant to the issuance of the November OW payment.
[45] Ms. Long’s banking records with the Bank of Montréal, Lincoln Heights, Ottawa Branch (the “BMO Account”) shows that Ms. Long received two payments from Rogers in October 2009, one on October 2, 2009 of $783.99 and a second deposit of $45.99 on October 16, 2009.
OW Payments paid September to December 2009
[46] Mr. Smith gave evidence on the OW benefits paid to or to the credit of Ms. Long between September and December, 2009. I accept Mr. Smith’s evidence that OW benefits paid totalled $3,083.00. These payments are the basis of the 2009 fraud allegations.
[47] Using the payment information provided by Rogers, Mr. Smith’s evidence was that Ms. Long earned the following (gross) income from Rogers:
Between July 16 and August 15, 2009 $ 868.98 Between August 16 and September 15, 2009 $2,087.58 Between September 16 and October 15, 2009 $2,443.28 Between October 16 and November 15, 2009 $3,257.17
[48] OW also obtained copies of the BMO Account, which show “pay” deposits made by Rogers in August, September, and October, 2009. The BMO Account shows that Ms. Long received a direct deposit from Rogers on August 12, 2009 and again on August 21, 2009. As I accept that the EF accurately records what Ms. Long told Ms. Kaufman on September 1, 2009, that leads to the conclusion that Ms. Long deliberately and fraudulently concealed her Rogers income from OW.
[49] The BMO Account records a deposit from Rogers to Ms. Long of $3,028.08 on November 13, 2009. That income was not reported to OW. The entries in the EF made between October 27, 2009 and December 31, 2009 documented that Ms. Long was unemployed. While that employment status information is corroborated by Rogers, which advised OW that Ms. Long’s last day of work was October 22, 2009, it must be remembered that the onus on Ms. Long was to disclose her income. She did not do that.
[50] Mr. Smith’s evidence was that had Ms. Long disclosed her Rogers income to OW, she would not have been entitled to receive any OW benefits from September to December 2009.
[51] I accept the evidence of Mr. Smith respecting the amounts that OW paid to Ms. Long and that she received a total of $7,893.41. I further accept the evidence of Mr. Smith that Ms. Long was not entitled to receive these OW benefits.
[52] I also accept the evidence of Mr. Smith, Ms. Dyer, Ms. Tremblay and Ms. Kaufman that, apart from the $45.00, Ms. Long did not disclose her Rogers income to them or to OW or to the City of Ottawa.
Evidence of Ms. Long
[53] Taken as a whole, Ms. Long’s evidence is that she did, in fact, provide OW with her income information. Ms. Long asserts that either she, or her roommate, dropped off Ms. Long’s Rogers paystubs at the OW office and that the paystubs were lost or misplaced by OW. Ms. Long further asserts that she did disclose to OW that she was employed and points to some of the notes in the EF which record that she stated that she did or intend to return to work. Ms. Long further asserts that OW knew her hourly rate of pay and hours per week as they were recorded in the EF, and, therefore, OW did have Ms. Long’s income information.
[54] Ms. Long also asserts that she did not understand how OW calculated the amounts it paid to her and that she could not have known that she was receiving more than she was entitled to receive. In that same vein, Ms. Long asserts that she provided OW with everything they asked her for and that if they had needed more information from her, such as further details of her employment income or medical status, they would have asked her for it. Therefore, she reasons, Ms. Long believed that she had provided OW with everything it needed to assess her claim for OW benefits.
[55] Ms. Long was unequivocal that she understood her obligations to disclose and report any change in her income. She was also very clear that she had been informed of the criminal consequences that could follow if she failed to be honest in reporting all of the changes to her income, assets, and living arrangements. Ms. Long’s rights and responsibilities had been explained to her in a video and in person, when she met with her caseworker. Ms. Long acknowledged that she had also read them as they were in the OW Application, the Rights and Responsibilities, and other OW forms that Ms. Long signed. Ms. Long also confirmed that she had read these forms prior to 2007, when she had earlier applied for OW.
[56] Ms. Long was very clear in her testimony that she understood that it was up to her to declare changes; that the onus was on her to report income to OW and not on OW to contact her to inquire. Ms. Long’s evidence on this critical issue is consistent with the evidence of the other Crown witnesses that OW operates on an honour system and gives the benefit of the doubt to its clients.
[57] Ms. Long stated that it was “crystal clear” that “any chance of income, you have got to report” to OW. I conclude that when Ms. Long failed to disclose her Rogers income to OW, she did so deliberately and intentionally in order to continue to receive OW benefits, to which she knew she was not entitled.
[58] The evidence of Ms. Long does not give rise to any basis to question or doubt the evidence of Mr. Smith or the caseworkers, that, had Ms. Long disclosed her income from Rogers, her OW benefits would have been terminated.
[59] Ms. Long changed her evidence throughout her testimony. For example, in her examination in chief, Ms. Long stated that she contacted her caseworker, Ms. Dyer, in 2007 because she was off work on a medical leave due to her pregnancy; that she was “absent from work” due to her “medical mishap”. Ms. Long asserted that she had to provide medical documentation to Ms. Dyer to show her what had happened, in order for OW funds to be released to her. That evidence conflicted with Ms. Long’s evidence that she had declared to Ms. Dyer that she had returned to work, and should have an income coming in and would be getting a paystub, which was Ms. Long’s explanation for why Box 10 was marked “Y”.
[60] Ms. Long contradicted herself when she said that she sought OW for help with the financial means to go back to work, and that she was meeting with Ms. Dyer on June 18, 2007, because she had returned to work. She did so again, when she said she was on stress leave and unable to work as at June 18, 2007.
[61] Ms. Long went on to say that on July 30, 2007 she telephoned OW to report that she was returning to work. Ms. Long asserted that she then either, herself, dropped off her paystubs at the OW office or she asked her roommate to do so.
[62] Apart from the testimony of Ms. Long, there is no evidence that OW received even one paystub for the relevant periods in 2007 or 2009 or that anyone at OW was ever told by, or on behalf of, Ms. Long that she was earning an income, or the amount of that income. The EF contains no such evidence and the evidence of the OW witnesses was that OW was not provided with Ms. Long’s income information.
[63] Ms. Long’s evidence was contradictory and conflicted with evidence given by the OW witnesses and contained in the EF. More importantly, it also conflicted with documents signed by Ms. Long such as the OW Application: paragraph 1 - application made because “inability to obtain employment”; paragraph 5 - income $0 except for NCBS; paragraph 7 - date last employed May 27, 2007; or with the Participation Agreement which deferred Ms. Long’s obligation to look for work until October 31, 2007.
[64] When confronted with her testimony that she was “off and on” with Rogers, Ms. Long was unable to say whether she had returned to work in June 2007 or in July 2007.
[65] Ms. Long’s trial testimony conflicts with the EF that records Ms. Long telling OW workers that she was on a leave of absence from Rogers due to “medical problems” and Ms. Dyer’s to the EF of June 18, 2007 in which she notes that Ms. Long told her that Ms. Long was employed by Rogers and did have that employment to go back to “but due to stress and the difficult pregnancy” Ms. Long could not work “at the present time.” I do not accept Ms. Long’s evidence that the June 18, 2007 EF entry is inaccurate.
[66] When Ms. Long was again asked whether she was working on June 18, 2007, and was confronted by the OW Application that she signed, Ms. Long finally agreed that Ms. Dyer was correct in how she completed Ms. Long’s application at their meeting on June 18, 2007. Ms. Long ultimately agreed that that was true that she was not able to work and that, in fact, she did tell Ms. Dyer on June 18, 2007 that she was off work on stress leave and unable to return to work.
[67] The foregoing is one of a number of examples of Ms. Long’s changing and contradictory evidence given in the course of the trial.
[68] Also, at times, Ms. Long’s evidence was, as asserted by the Crown, “simply incredible”. For example, Ms. Long stated that “earnings is the most important question”. Indeed, that was the evidence from all the witnesses. Despite that, Ms. Long asserted that in her meeting with Ms. Dyer on June 18, 2007 to complete the OW Application, Ms. Long could not recall even being asked by Ms. Dyer about her earnings. Ms. Long’s evidence on that point is not believable.
[69] When specifically asked about her income as at June 18, 2007 Ms. Long stated that she did not have earnings on the day she applied for help from OW. Ms. Long stated that when she met with Ms. Dyer on June 18, 2007, she told Ms. Dyer that she was making no money from Rogers. The Rogers payroll records show otherwise.
[70] Ms. Long asserted throughout her testimony that she always disclosed her income to OW and provided paystubs and any other documentation that was requested of her by OW. Ms. Long’s evidence was that she, herself, attended at the OW offices monthly to drop off paystubs. She later changed that answer and stated that she may have attended OW less frequently than every month but that her (then) roommate dropped off Ms. Long’s paystubs at the OW offices. I find Ms. Long’s evidence on this key issue to lack credibility and I do not accept it.
[71] Ms. Long acknowledged that there were “gaps” in her memory of many of the events in issue. That is not surprising given that the charges dealt with events that in some cases occurred almost ten years prior to trial. However, even accepting that Ms. Long’s memory is understandably incomplete, her evidence was contradictory and, in many instances, simply not believable. For example, given the importance to OW of an applicant’s income, and the details recorded of the numerous contacts between Ms. Long and OW on other matters, it is impossible to accept Ms. Long’s assertion that OW must have lost or misplaced every one of the paystubs dropped off at the OW offices or to believe that, although OW kept records of its many contacts with Ms. Long, it failed to make any record of when Ms. Long provided income information.
[72] Ms. Long presents as intelligent and well-informed about how OW operates, which makes it difficult to accept Ms. Long’s evidence that she had no idea that OW was not receiving the paystubs or to question why she continued to receive OW benefits while she was working and receiving income from Rogers. Indeed, her employment with Rogers was the very reason Ms. Long gave to OW on September 4, 2007, when she asked that her file be closed.
[73] In her testimony, Ms. Long stated that she knew that her OW caseworkers carried a very large client load and that one of her caseworkers was often absent from work due to illness. I conclude that she took advantage of that situation and deliberately failed to disclose her income to OW in the expectation that she would go on receiving OW benefits, without being caught. In fact, it appears that her overpayment and non-disclosure did go undetected for many years.
[74] Ms. Long testified that she had no idea and OW never told her how much she could expect to receive in OW benefits. Ms. Dyer’s evidence was that she did tell Ms. Long what she should expect to receive and that her handnotes at paragraph 10 of the Rights and Responsibilities form show that Ms. Dyer calculated that Ms. Long would be entitled to receive $915.59 in OW benefits. While that evidence is not overly important to the charges, it is another example of Ms. Long’s evidence conflicting both with the testimony of her caseworker and with the documentary evidence that corroborates the testimony of Ms. Dyer.
[75] Apart from the $45.00 earned from Rogers, I do not otherwise accept Ms. Long’s evidence that she disclosed her Rogers income to OW. Based on all the evidence, I conclude that had Ms. Long provided OW with any evidence of her Rogers income, it would have been recorded in the EF. I conclude that the EF is a reliable record. In reaching that conclusion, I take into account the information on the EF that Ms. Long acknowledged was accurate; that there were a number entries to the EF after June 18, 2007 recording contact between OW and Ms. Long and actions and payments were made as a result of that contact. For example, the EF records a request by Ms. Long for help to pay her hydro and utilities. That was done. I cannot and do not conclude that the EF record would be accurate on those innocuous matters but inaccurate on the critical issue of Ms. Long’s income.
[76] Based on all the evidence, it is reasonable to conclude, which I do, that had Ms. Long disclosed her Rogers income to OW, it would have been noted in the EF. The conclusion that no income was disclosed by Ms. Long is further supported by the entry in the EF of August 16, 2007 which notes that Ms. Long was contacting OW to advise that she had returned to Rogers but did not expect a paycheque until the end of that month. The Rogers records and the BMO Account show that Ms. Long was not truthful with OW.
Analysis
[77] In assessing the evidence, the Court must follow and apply the analysis set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742. In a case such as this in which the accused has testified, the Court does not undertake a credibility analysis as between the accused and the Crown witnesses. Rather, the Court must decide whether, on the whole of the evidence, the Crown has met its onus and proven the allegations beyond a reasonable doubt. It is not the responsibility or burden of the accused to disprove guilt or prove her innocence. At no time is the accused required to explain away the evidence of the Crown witnesses made against her or to explain why any of them would have given false evidence.
[78] The R. v. W. (D.) analysis requires the Court to determine the issue of credibility as follows:
i. If the Court believes the evidence of the accused, the Court must acquit;
ii. If the Court does not believe the testimony of the accused but is left in reasonable doubt by it, the Court must acquit;
iii. Even if the Court is not left in doubt by the evidence of the accused, the Court must ask whether, on the basis of the evidence which is accepted by the Court, that the Court is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
(i) Does the Court believe the evidence of the accused?
[79] The lack of consistency with which Ms. Long answered the questions put to her on cross-examination respecting key issues, leads me to conclude that she has not been truthful on these important issues. Moreover, Ms. Long’s evidence conflicts with the independent evidence such as the Rogers payment records and the BMO Account.
[80] There were many consistencies between the evidence of the OW witnesses and that of Ms. Long: all agreed that Ms. Long had the obligation to report changes in income; all agreed that Ms. Long was accepted at her word when she reported that she was not working and could not work due to illness. Ms. Long expressed appreciation for Ms. Dyer and how well she was treated by Ms. Dyer. Ms. Dyer presented as someone who was understanding and sympathetic to Ms. Long’s situation.
(ii) Did the Defence Evidence Raise a Reasonable Doubt?
[81] I do not view the answer given by Ms. Tremblay that it is “possible” that she erred in her note of October 27, 2009, as an admission that she did make a mistake in that note. Viewing her testimony and the OW evidence as a whole, I conclude that the EF notes do accurately reflect discussions with Ms. Long. Again, on the important point of Ms. Long’s income, I do not accept Ms. Long’s self-serving interpretation of Ms. Tremblay’s entry in the EF. Rather, I conclude that this entry is the only time that Ms. Long ever disclosed income details to OW during the relevant period and that Ms. Long had no concerns that her disclosure of only $45.00 in earnings would affect her OW benefits.
[82] While recognizing that the OW evidence was not without flaws, the evidence upon which the Crown based its case was reliable. That evidence included Ms. Long’s income information from Rogers; amounts OW paid to or for or credited to Ms. Long; the BMO Account; the EF; and the evidence of the OW witnesses, whom I found to be fair and credible in their testimony.
[83] The essential assertion of Ms. Long is that she disclosed her income to OW. For the reasons already given, I do not accept Ms. Long’s evidence on that issue. I also do not accept her evidence that she believed that OW knew that she was employed and receiving income from Rogers and that OW had been provided with Ms. Long’s paystubs. Finally, I do not accept Ms. Long’s evidence that she assumed that she was entitled to continue to receive OW benefits, even though she was working; that she never questioned the amount she received; and assumed if she received OW benefits, it was because her caseworker had decided to authorize payment. That assertion conflicts with Ms. Long’s evidence that she knew that disclosure of income information was important. I find that Ms. Long understood that if she disclosed her income, she would lose her benefits.
[84] For all these reasons, I find that Ms. Long’s evidence did not raise a reasonable doubt about her guilt.
(iii) On the Whole of the Evidence that I Accept, has the Crown Proven the Accused’s Guilt Beyond a Reasonable Doubt?
[85] I accept the evidence of Ms. Long’s OW workers that Ms. Long never told them she was earning income. I find that the EF was a reliable record of OW dealings with Ms. Long and that at no time relevant to these proceedings did Ms. Long disclose her income to OW. I accept the accuracy of the OW payment records. I accept the evidence of Mr. Smith as to how he arrived at the total of $7,893.41 as the amount paid by the City of Ottawa to Ms. Long by reason of her fraudulent non-disclosure of her income.
The Law
[86] The elements of the offence are as follows:
(1) that Ms. Long deprived the City of Ottawa of something of value;
(2) that Ms. Long did so by way of deceit, falsehood or other fraudulent means;
(3) that Ms. Long intended to defraud the City; and
(4) that the value of the property exceeded $5000.
[87] Ms. Long asserts, and I agree, that the Crown must prove all elements of the offence beyond a reasonable doubt. In closing submissions, counsel for Ms. Long acknowledged that the Crown has established that there was an overpayment. I agree. However, Ms. Long asserts that the Crown has not proven that she intended to commit the crime with which she has been charged or that she was deceitful. Specifically, Ms. Long asked where is the evidence of deception?
[88] The evidence of deception is found in the OW applications signed by Ms. Long in which she disclosed no income, when she had income. The evidence of deception is found in the EF which records telephone conversations and meetings between Ms. Long and OW staff in which Ms. Long advises that she was not working and that she was unable to work for medical reasons, when she was working.
[89] Ms. Long’s evidence was that she knew that she had to disclose her income to OW; that the onus was on her. Yet she did not do so. Supreme Court of Canada in R. v. Zlatic, [1993] 2 S.C.R. 29 makes it clear that non-disclosure of important facts qualifies as “other fraudulent means”.
[90] The Court’s statements at paragraph 31 of Zlatic are instructive:
Most frauds continue to involve either deceit or falsehood. As pointed out in Théroux, proof of deceit or falsehood is sufficient to establish the actus reus of fraud; no further proof of dishonest action is needed. However, the third category of “other fraudulent means” has been used to support convictions in a number of situations where deceit or falsehood cannot be shown. These situations include, to date, the use of corporate funds for personal purposes, non-disclosure of important facts, exploiting the weakness of another, unauthorized diversion of funds, and unauthorized arrogation of funds or property. [case citations omitted] (emphasis added).
[91] The facts in this case are sufficient for this Court to make a finding of deceit or falsehood. In addition, there is little doubt that Ms. Long failed to disclose the important fact that she was receiving income from Rogers.
[92] Ms. Long argues that the Court must find that that the City of Ottawa was defrauded in 2007 and in 2009 and that if the Crown has failed to prove beyond a reasonable doubt that there was fraud in 2009 that the total amount would fall below $5000 and that the charge would have to be dismissed.
[93] The Court has already concluded that the Crown has established beyond a reasonable doubt that there was fraud in 2007 and in 2009, so this ground of defence does not apply. However, even if the Crown had failed to prove the 2009 fraud, section 662 of the CC specifically provides that an accused may be convicted of a lesser and included offence, notwithstanding that the whole offence that is charged is not proved. In this case, had the Crown failed to prove the 2009 fraud, Ms. Long would still have been guilty of the lesser and included offence of fraud under $5,000.00.
[94] Ms. Long argued that because Mr. Smith acknowledged that he could not explain two entries in the OW accounting records then how was Ms. Long expected to know and keep track of the money she received? The first entry concerned a refund of $128.30 that was deleted and then added back into the record of payments to Ms. Long and the second entry related to the OW records that showed that Ms. Long was owed $310.90. These entries do not materially, if at all, affect the calculation of the amount by which the City of Ottawa was defrauded.
[95] Ms. Long’s argument unsuccessfully tries to shift the focus from her non-disclosure of income to an alleged mistake in OW’s record-keeping. The charge was laid because Ms. Long failed to report her income to OW. Ms. Long knew what she was receiving from Rogers. Ms. Long knew that she had not disclosed that income to OW. Ms. Long knew that she had an obligation to do so and that if she did not disclose that income, criminal consequences could follow.
[96] There is also no merit to Ms. Long’s argument that Ms. Dyer had an obligation to request information from Ms. Long: that was not the evidence. There is also no merit to the argument put forth by Ms. Long that there would be no reason for her to purposely commit fraud because she knew any overpayment would have to be repaid. That rhetorical question could be asked of anyone who has broken the law knowing of the risk that, if caught, they would have to repay money wrongfully taken.
Disposition
[97] Based on all of the evidence, I conclude that Ms. Long deliberately did not disclose her Rogers income to OW although she knew that she was obliged to do so. I further conclude that Ms. Long deliberately failed to disclose her Rogers income with the intention of defrauding the City of Ottawa of an amount over $5,000.00 namely the OW benefits paid to her as a result of that non-disclosure.
[98] For the above reasons and based on the evidence that I accept, I am satisfied beyond a reasonable doubt of Ms. Long’s guilt and I find her guilty of the charge laid against her.
L. Sheard J.