Judge left with reasonable doubt as to whether the accused had the requisite mens rea for fraud. Crown unable to establish their case beyond a reasonable doubt.

R. v. [REDACTED], [2016] O.J. No. 2697

Ontario Judgments

Ontario Court of Justice
Toronto, Ontario
Heard: May 4, 2016.
Oral judgment: May 4, 2016.
Information No. 12-344572

[2016] O.J. No. 2697

Between Her Majesty the Queen, and [REDACTED]

(68 paras.)



[REDACTED], Counsel for the Provincial Crown.

[REDACTED], Counsel for [REDACTED].


[REDACTED] J. (orally)

1   Ms. [REDACTED] is charged with one count of fraud over $5000. The allegations are that between September 1st, 2007 and August 31st, 2009 she defrauded Ontario Works of over $15,000. It is alleged that at various times during that period she worked as a security guard and did not declare her income, that she went to Ryerson University and that she received OSAP. Each act on its own would trigger a review as to whether she was still eligible for assistance.

2  Defence acknowledges that Ms. [REDACTED] was on assistance, that she worked as a security guard during the relevant time, that she registered at Ryerson University, that she was in receipt of OSAP and that she was in receipt of an overpayment just over $15,000. What is in issue is whether Ms. [REDACTED]understood her obligation to report changes in her income and university attendance to Ontario Works. Ms. [REDACTED] came to Canada in 2002 from Iran and English is not her first language. Her ability to understand English at the relevant time and thus her understanding of her obligation to report is very much an issue.

3  THE COURT: Mr. [REDACTED] I'd invite you to tell me if I'm going too quickly. Is that pace alright?

4 [REDACTED] (Farsi Interpreter): That's fine, thank you.

5  Additionally, Ms. [REDACTED] testified that she did tell her assistance workers about her employment and her university status, including receiving OSAP.

6  At the conclusion of the trial the following issues were argued: Has the Crown proven beyond a reasonable doubt that the Accused had the requisite mens rea for fraud in the light of the following: a) that she did report her income, attendance at Ryerson and OSAP loan b) if I find she did not report, her failure to report was a negligent or careless statement and did not reach the level of intentional falsehood required for fraud, and c) that she did not understand her obligation to report income because of her limited English.

7  The Crown's position is that Ms. [REDACTED] never reported her income to her workers at Ontario Works, as established by the lack of any entry in the hundreds of case notes indicating that she did report. Further, the Crown argues that her English was regularly acknowledged as being functional and not requiring of an interpreter. Her failure to report her income was because she was in desperate need of income and as such she intentionally withheld required information so that she could financially benefit.

8  Turning now to the evidence. While much of the evidence in this matter was admitted on consent, the trial lasted approximately ten days. There's a sizeable amount of evidence to summarize. In terms of admissions the following was acknowledged by the defence: 1) On August 21st, 2003 the Accused completed the initial application for assistance. Contained within the documentation is a statutory declaration signed by the Accused acknowledging that all statements are true and that the applicant will advise of any change of circumstances, including changes to income and assets. There is also a note that sets out the criminal offence of fraud. 2) That the Accused was on Ontario Works until her arrest on these charges on February 6th, 2012 and that the total amount of the overpayment, once the employment and OSAP incomes were factored in, was $15,047.82. 3) That the Accused was admitted to the Bachelor of Engineering program at Ryerson University on July 30th, 2008. She was discontinued from the program on January 2012. On August 14th, 2014 she was admitted to a Bachelor of Computer Science program. 4) That the Accused worked for Gemstar Security as a security guard from August 3rd, 2007 to July 3rd, 2009. 5) That the Accused was in receipt of an OSAP grant on October 10th, 2008 for $7,350 and April 6th, 2009 for $4,297.

9  Ms. [REDACTED], an employee of Toronto Employment and Social Services (hereafter referred to as TESS) took the initial application for assistance from the Accused on August 21st, 2003. She testified she had no problems having a conversation with the Accused. Her notes indicate there was no need for an interpreter. If a client needed an interpreter she would have arranged for one or would have the client bring in a friend who could translate. Ms. [REDACTED] was told she needed to bring in proof regarding the expiry of her federal assistance and that proof was provided by the Accused the next day. She could not say that the Accused read the rights and responsibilities document she was given. Nor could she say whether the Accused asked any questions or how long the discussion lasted.

10  Between 2003 and 2008 dozens of additional case worker notes were completed. Mr. [REDACTED], who also works at [REDACTED] saw the Accused on February 1st, 2008 in the office. He testified they spoke about her going to Academy private high school, her departure from there because she could not pay the fees and about her getting computer training so she would be more marketable and doing volunteer work. She was advised that employment related expenses could be issued for a person engaged in volunteer work or computer training. He made two referrals relating to the above. One of the prerequisites for the computer skills course was that the applicant must speak English as a second language. Mr. [REDACTED] was of the opinion that "her English was more than enough to communicate." He based this opinion on asking questions such as do you understand. He says the client must be able to communicate and by that he means the client can express herself and he can understand and there's no miscommunication. If he is concerned that the English skills are not sufficient then he discontinues the interview. In terms of referring her to the computer courses he says he looks at the language ability and if he is sure they can go he refers. If he is not sure he does not refer. He could not say how long he spent with the Accused but the referrals alone would have taken ten minutes. During the meeting, issues of financial eligibility were not touched on. He noted that if it was touched on it must be noted. If there are any unresolved questions they would be noted in the file. Mr. [REDACTED] presented as an eminently capable, knowledgeable and diligent employee. He was very familiar with Ontario Works policies and rules and seemed committed to following them.

11  Ms. [REDACTED] has been a case worker with TESS for 23 years. She was the worker who had the most long standing relationship with the Accused. On March 16th of 2007, Ms. [REDACTED] had her first meeting with the Accused - an update meeting. The Accused did not indicate anything about working. She was asked if there was anything new and she said no. Her health was discussed, the fact that she wanted to go back to City Adult Learning to get grade 12 credits and pursue post-secondary education to become an Aerospace Engineer and work for NASA. On July 23rd, 2007 Ms. [REDACTED] signed a consent to disclose, a document that allows TESS to obtain a client's income tax information. See exhibits 7, e to g.

12  Ms. [REDACTED] had numerous subsequent meetings with the Accused. Their conversations revolved around completing high school, health issues, the fact she had received her high school diploma in Iran, her volunteer activity, her desire to work until her return to school. On one occasion, October 26th, 2008 the Accused called Ms. [REDACTED] to say that she had been served with a notice of termination because she was owing in rent. Her purse had been stolen when she was on her way to the bank to get a money order. She'd asked a friend to lend her money but that did not work out. Ms. [REDACTED]said it looked like there was an agreement between the Accused and the landlord to work the issue out. On another occasion, August 10th of 2007, Ms. [REDACTED] called to say that she wanted to take a course at the Academy of Excellence private high school where she was promised employment and would provide the details. She also provided a receipt in the amount of $150 for reimbursement for her tuition at City Adult Learning.

13  On November 7th, 2007 Ms. Leonard received a letter from the Academy and advised Ms. [REDACTED] that the request to refund the graphic design and publishing courses would have to be reviewed. Ms. [REDACTED] said she questioned Ms. [REDACTED] about whether the courses were viable due to her goal of working for NASA. On February 15th, 2008, Ms. [REDACTED] received a fax from St. Boniface Church indicating that Ms. [REDACTED] was volunteering and that she should be assisted with transportation, clothing and grooming for an allowance of $350.

14  Ms. [REDACTED] testified that all the forms needed to be completed once a year except for the participation agreement which must be completed every three months. On the 8th of October 2008, Ms. [REDACTED]'s application for Ontario Works was updated. See Exhibit 7h. Among the questions in the review are whether any income, allowances, supports, resources are available or expected. In that application check boxes regarding income, assets or benefits are repeatedly marked N for no. No entry is listed for current earnings or employer. This of course is at a time when the Accused had been working for Gemstar, a security firm for 14 months and receiving regular wages.

15  The rights and responsibilities document filed as exhibit 7k was also signed by the Accused that same date. In that document there are multiple warnings about the responsibility to report changes in income or assets as well as the Criminal Code definition of fraud. Ms. [REDACTED] said that the Accused tended to be tentative so that she, Ms. [REDACTED], would have reviewed the documents and put them in lay terms. When going through these documents Ms. Leonard said clients are asked if anything has changed since the last review. Three months of bank information are requested and clients are asked if there are things they have not declared. The client then reviews and signs.

16  On the 15th of October 2008, Ms. [REDACTED] had an in office meeting with the Accused regarding her search for employment. The Accused said that she had not pursued a client participation course because of pain in her neck and because she was hospitalized because she has three kidneys. This "three kidney" comment ascribed to Ms. [REDACTED] was characterized as an example of the poor communication between the Accused and Ms. [REDACTED]- Ms. [REDACTED] testifying that while she had kidney problems, she never said she had and nor does she have, three kidneys.

17  On October 30th, 2008 a special diet form was received from Ms. [REDACTED] to obtain additional assistance in the amount of $178 a month. March 19th, 2009 Ms. [REDACTED] engaged in an application update with the Accused. Exhibit 7L. The questions regarding incomes and supports are extensive. The Accused indicates she requires a special diet. No income was reported notwithstanding that the Accused was still working for Gemstar. OSAP was not declared nor was Ms. [REDACTED]'s registration at Ryerson mentioned. There are a number of blank boxes in the application which Ms. [REDACTED] attributed to a computer glitch. She said the information is in the system but it did not print.

18  During all their dealings the Accused never reported being in receipt of any income or OSAP or that she was going to Ryerson. Ms. [REDACTED] knew that the Accused wanted to go to university. She advised the Accused to provide verification of admission and OSAP.

19  In terms of note taking guidelines, workers are to note everything that is pertinent to eligibility. Where clients live, their assets, income. During updates clients are advised of their report income procedure. If Ms. [REDACTED] was told of employment, it would be noted in the case notes. Likewise, if she was told the client got into university or received OSAP. She said that the office is busy and that it can be like a "factory line." It is possible she deals with up to 20 clients a day. In terms of the Accused's English skills, Ms. [REDACTED] was of the opinion that she could understand the appointments. Her reading, writing and comprehension was fair. If the persons English was poor the meeting would be rescheduled with an interpreter. Ms. [REDACTED] never indicated she was having trouble understanding. She understood and conversed clearly. Ms. [REDACTED] did not recall Ms. [REDACTED] having to get an interpreter.

20  In cross-examination, Ms. [REDACTED] originally stated that a number of these meetings were in person but agreed that some may have been over the phone. Specifically on October the 8th of 2008, she said it was more than likely that the Accused missed their scheduled meeting and signed the documents when she came in that day. Ms. [REDACTED] does not recall how long she spent with the Accused when she came in but it is not possible that she just gave her the documents to sign. She did not recall if the Accused had any questions on October the 8th on March 19th, 2009. In the March 19th case note, Ms. [REDACTED] noted that the Accused told her she would finish at City Learning in June and that she'd applied to the University of Ottawa and Ryerson and was waiting for OSAP. Notwithstanding of course, that she had already been accepted to Ryerson and was already in receipt of OSAP. Ms. Leonard did not enter this particular case note until April the 7th but it was based on notes she made and then disposed of.

21  When Ms. [REDACTED] went through the documents with the Accused the Accused would sit there and shake her head and ask questions if she had any. She could not recall if the Accused had any questions on October 8th or March 19th. In terms of the Accused's English skills, a case note from March 16th, 2007 wherein Ms. [REDACTED] noted that the Accused's English requires improvement, was put to her. Ms. [REDACTED] said yes and no to whether her English needed improvement. Yes in light of what the Accused wanted to do: become an engineer. No in that her English is good enough to fill in an application and get employment.

22  The case notes make many references to the Accused hoping to attend college and applying for OSAP after completing grade 12. On March 14th, 2014 Ms. [REDACTED] told her worker that she'd been accepted into Computer Science for fall 2014 at Ryerson and that she would be applying for OSAP. In every PAR earnings are always touched upon. Employment would not be noted unless it had been found. Ms. [REDACTED] believes she asked those questions of the Accused but does not know if she did.

23  Mr. [REDACTED] also testified. He's been employed by Gemstar - a company that provides security guard services - to supervise payroll and human resources since 2008. Ms. [REDACTED] was employed by Gemstar beginning August 2007 and continuing until July of 2009. Exhibit 9 shows a summary of the cheques and deposits made to the Accused's bank account between those years. Essentially, it shows payment every other week during those periods. Mr. [REDACTED] said her hours were mostly full time. In addition to this evidence he also spoke to the Accused's facility with English. He testified that she has a strong accent; that she understands English and that you can get your point across. He said that her English is not perfect but in his opinion she could live in our society and function well. He said that you would have to explain but that she does understand English and that she can get it eventually. If she did not understand, she would ask you to repeat. She can follow instructions. In his human resources role, Mr. [REDACTED] had to speak to the Accused about two dozen times during her employment. Because of disciplinary issues, Ms. [REDACTED] was removed from sites for various reasons: failing to write reports, wear her uniform, failing to appear for a shift.

24  These issues are relevant because the Accused testified that it was her inability to understand instructions that caused her not to wear her uniform on two occasions. On this point, Mr. [REDACTED] provided a number of letters and emails to and from Ms. [REDACTED] during that period. One e-mail, dated May 2nd, 2008 the Accused wrote, "Hi Mr. [REDACTED] this is [REDACTED]. You told me I have to send you about how much I paid to taxi on Sunday last week. When I went to Front Street I paid $60 to go and come back. Okay thank you so much sir." Paid is spelled P-A-I-E-D. Thank you is spelled T-A-N-K.

25  In another e-mail dated March 8th, 2009 she wrote, "Hello Mr. [REDACTED]. This e-mail will serve to verify that is [REDACTED]. I am so sorry if I bother you." Spelled B-A-T-H-E-R. "First I have to say thank you very much for everything. I like you and your nice company. Second can you please release my pay vocation?" Release spelled R-E-I-L-I-E-S. Vocation or vacation, V-O-C-A-T-I-O-N. "For 2009 and also last year too. And if it is possible could you raise the pay to me please. I am so sorry if I did not need money I won't tell you that." And in response to a notice of suspension for failing to wear proper attire during an evening shift Ms. [REDACTED] wrote among other things, "I know I didn't do my job very well. I am so sorry. It was my mistake." Spelled M-I-S-T-A-K. "But I didn't have any warm jacket." Spelled W-O-R-M-J-A-K-E-T. "And my kidney has a problem. At that night was very cold I didn't my uniform."

26  Additionally Mr. [REDACTED] reviewed Ms. [REDACTED]'s personnel file which included her application to Gemstar, exhibit 13. Included is a spelling test where the Accused was asked to check the correct spelling for words such as temperature, spelled T-E-M-P-E-R-T-U-R-E versus the correct spelling of temperature. Recommend, R-E-C-C-O-M-E-N-D versus the correct spelling. Drunkenness with two n's versus with one n. Accommodate with two m's versus one m. Seize spelled, S-C-I-Z-E versus S-I-E-Z-E. Liaison spelled properly versus L-I-A-S-O-N. All of these Ms. [REDACTED] appeared to answer correctly. Her application also included the writing of a report based on a certain fact situation. The purpose of the mock report is for Gemstar to get an idea of the persons writing and competence. While the writing in her report essentially mirrors the basic facts given, it does show an appreciation of syntax, the instructions that were given and an appreciation of the task at hand. There was also an interview note that the Accused sometimes has difficulty with English.

27  Ms. [REDACTED] has been working at TESS for 27 years. In May of 2010, she was working as an eligibility worker. She received a notice of discrepancy from Revenue Canada. It showed that Ms. [REDACTED]had declared income on her T4 but had not declared such income to Ontario Works. Ms. [REDACTED] secured the Record of Employment from Gemstar and confirmed that the Accused had been paid $19,674 resulting in an overpayment by Ontario Works of just over $15,000. This is the amount of the alleged fraud.

28  When Ms. [REDACTED] got in touch with the Accused on May 10th, 2010 and questioned her about the undeclared earnings, Ms. [REDACTED] said that she did not speak English well back then, and did not know to declare the income and that welfare did not pay enough and that she had bills to pay. Ms. [REDACTED] noted no concerns regarding the Accused's language at the time. The comments attributed to the Accused were not in quotation marks. Ms. [REDACTED] generally records notes right after a conversation but she cannot say with one hundred percent certainty that she did so in this case. She would not have remembered the conversation if she had not seen her notes.

29  Ms. [REDACTED], an employee with TESS since 2006 and currently in the fraud review unit, testified that every month clients receive an income reporting statement, exhibits 20 a through c. If there are changes in their income or circumstances they are required to submit the form. There is also a notice attached to the cheque that clients are to advise TESS if anything changes in their situation. At some point the system changed to direct deposit but the cheque stub and notice would still be in the mail.

30  Additionally, if a person is on Ontario Works, they must participate in a community placement. Ms. [REDACTED] reviewed all the case notes relating to Ms. [REDACTED] up to 2009 and she was not aware of any notation by any of the workers that Ms. [REDACTED] had reported any income, registration at a post-secondary institution or that she was in receipt of OSAP.

31  Ms. [REDACTED] testified in her own defence. She was born and raised in Iran and came to Canada in 2002. She studied in Farsi and graduated from high school there, focusing on math and physics. She only spoke a few words of English upon her arrival.

32  Turning now to evidence regarding her employment: Ms. [REDACTED] acknowledged that she worked at Gemstar from August 3rd, 2007 to July 3rd, 2009. Her lack of English resulted in her not doing her job properly and receiving warnings from her bosses. A woman at work assisted her by showing her how to do the job, how to lock the elevators, write reports, check the buildings. It was the demonstrations and not the instructions that allowed her to do her job. She left the company because she had dental surgery and other pain - surgery that was confirmed in an exhibit filed by the defence. In 2007 to 2009, the Accused fell into a deep depression about her mother who remained in Iran and had fallen ill. It took the Accused four years to recover. When asked if she remembered meeting with case workers, she said not much because it was nine years ago. She signed documents but she never read a word of them. She would understand as much as she could orally and then a form would be put in front of her and she would sign, only having understood simple concepts and words. No interpreter was ever present nor did she know anyone whom she could bring along to translate.

33  Evidence regarding Ryerson University: The Accused testified that she enrolled in the Bachelor of Engineering program at Ryerson in 2008. Her report card shows all zeros. Ms. [REDACTED] testified that she left because she could not understand the classes or course work. She decided she needed to take language lessons and left. In terms of OSAP, Ms. [REDACTED] did not consider it income as it was all spent on tuition and books and believed she would have to repay it.

34  Her friend's son who was at university filled in the OSAP application for the Accused. Ms. [REDACTED] believed that Ontario Works had access to her income tax records, filed as an exhibit by the Crown, because they are both government agencies. Her income tax filings in 2007 and 2009 indicate an income in the range of $6,000 a year. In 2009, the Accused left the country because of her mother's deteriorating health. Because she was leaving and because of her understanding of the rules she called Ontario Works to advise that she would be out of the country for one month. This is confirmed in the case notes.

35  In terms of the conversation with [REDACTED] in May of 2010, she said that Ms. [REDACTED] asked her if she had started a job to which the Accused responded yes. Ms. [REDACTED] said that a person who receives welfare should not take a job. Ms. [REDACTED] said she realized she had made a mistake. She apologized and submitted the CRA, Gemstar and welfare documents to Ms. [REDACTED] very quickly as requested. At that point she said her English was better than before.

36  When exhibits 7 h to k were put to the Accused she acknowledged her signature but denied any knowledge of what the documents were or meant. She simply trusted the woman at the agency and signed them without reading one sentence. She said she did not remember exactly the conversations with case workers regarding work.

37  She said she always wanted to work and continue her education and she tried to the best of her ability to make them understand that. There are multiple references in the case notes on those points. When asked why she did not tell case workers about Gemstar, she said she did not recall anything exact, but that she did not know that she had to report any job because she had let them know she was looking.

38  In terms of OSAP, she believed all these government agencies had access to all her personal information based on her experience in Iran. She did not tell them about Ryerson because she left. She did not think anything would happen if she told them these things. The first time she knew she had been given money that she wasn't legally entitled to was in 2010. If she knew she was committing a crime she would never have done it.

39  Ms. [REDACTED] was cross-examined extensively. She testified that her mother's situation in Iran caused her to become depressed. Particularly between 2006 and 2010. During that same period a friend told her she could work for Gemstar Security and it would pose no problem regarding Ontario Works. When she came to Canada her main goal was to go to university. Her greatest wish was to work for NASA. She knew she would have to become more proficient in English and accordingly she went to ESL classes in 2003 and 2004. By the summer of 2004 she was in level four of the ESL but not really advancing. She switched to City College until 2007 where her marks were not good and she was advanced because the teacher asked her if she wanted to advance and then just did her a favour. She was getting about 50 percent in all subjects.

40  From 2007 to 2008 she attended the Academy of Excellence private high school, a dual language school in Farsi and English. The Accused wanted Ontario Works to pay the tuition for computer courses and to that end the principal of the school contacted Ms. [REDACTED]. She helped children at the low grade levels in math and physics. In exchange the Accused was not charged for classes. Further the principal of the school put her through a simple English test for grade 12 English, evaluated her Iranian high school diploma and issued a grade 12 transcript which allowed her to apply to Ryerson. In retrospect, she says a child could have passed that test.

41  In terms of her admission to Ryerson there was no interview. The private high school completed the online application and sent the transcript and in March of 2008 she got her letter saying she was accepted into Electrical Engineering and Aerospace. The principal put the necessary fee on her Visa. Once the Accused realized her English was not good enough she left the university. She was in over her head in terms of her English. She left by the end of her first month. She did not seek to get her tuition back nor did she sell the books she had purchased. At that time she owed $14,000 on her credit cards. In terms of her OSAP application in 2008, her friend's son filled it in for her and she did not even see it. Her English was good enough to answer his basic questions.

42  Between 2002 and 2007 the Accused volunteered between 20 to 24 hours a week in various churches and at the Adult Learning Centre. English was spoken at the volunteer placements. She did not ask anyone in her community to help her with her Ontario Works applications because she did not like to ask. Her friend volunteered her son regarding the OSAP application.

43  When she applied to Gemstar she was told that she had to get her security guard license first. It involved taking a course in English. She made many mistakes in the test and got 30 percent but the examiner falsified the result and made it a 50 percent. The company guarantees that an applicant passes. Exhibit 10b, her application for security guard license, was filled out in her hand writing but she was told by [REDACTED] at Gemstar what to answer and [REDACTED] helped her to copy information from someone else's application. That explains why there's an incorrect reference to working in Leeside. Her interview with [REDACTED] at Gemstar was in English. When asked if she filled in the spelling test for Gemstar with no assistance she said she did not remember. She acknowledged it was possible she filled it in because her name was there.

44  In terms of the mock report, she advises she was told to copy from other people's forms if she had any problems. She did not have a pre-existing friendship with [REDACTED]; she was just kind in helping the Accused to get a job.

45  A number of e-mails and notes authored by the Accused in 2008 were put to her. She explained that she wrote them with the assistance of Google translate; spell check and/or a dictionary. She identified the different parts of the various texts where she used those methods. When asked to explain various spelling mistakes in the documents i.e. thank you spelled as T-A-N-K-U and paid, P-A-I-E-D she says she did not remember when she wrote that particular document, nor whether she wrote exhibit 16, the e-mail to "Mr. [REDACTED]", on her own. She denied speaking to Mr. [REDACTED] dozens of times. She did not remember having spoken with him as all her communications were with [REDACTED] and [REDACTED] at Gemstar. She had difficulty understanding because of her language skills what her hours of work were, that she had to wear a uniform on the job resulting in disciplinary issues.

46  Ms. [REDACTED] declared all her income through Canada Revenue Agency. She stated, "I believe I did declare to Ontario Works. I don't remember. I did it once or twice a month, not very often." She does not recall the names of the workers to whom she disclosed or when she disclosed. She acknowledged that Ontario Works was a program by the government for people who need it. Further she acknowledged receiving a cheque like the one in exhibit 20c with a notice at the bottom stating that the recipient must notify TESS immediately when there are changes in income. She received that notice with every cheque. Likewise, she received an income reporting statement every month and at every meeting with a case worker. Only now, the Accused testified, does she realize what it says in terms of reporting income changes. Ms. [REDACTED] did not consider OSAP income as it covered her schooling expenses. When pressed about whether she told Ms. [REDACTED] about Gemstar, OSAP or Ryerson, she testified that Ms. [REDACTED] had access to her bank records and she assumed she already knew. She disagreed that Ms. [REDACTED] tried to explain things in lay terms and testified that workers would not take time with her to explain things. Ms. [REDACTED] said she asked for an interpreter and one was not provided. She does not remember how many times she asked. The workers never explained the important parts to her. They were in a rush and quickly got the Accused to sign. She asked for interpreters at least two or three times. She was ashamed to tell the workers that she did not understand. Ms. [REDACTED] did not consider OSAP income.

47  Copies of the documents Ms. [REDACTED] signed were sent home with her but she never read them nor did she review them when she signed them. In 2003 to 2004 she was considering moving to London, Ontario with her friend. She changed her mind after visiting the city. When asked how her worker came to know this information, i.e. the Accused must have told her worker in English, Ms. [REDACTED] said no that her friend in London contacted the worker and told her. On a number of occasions the Accused answered, "I don't remember, this was 12 years ago." In September of 2006 the Accused acknowledged that she was over $10,000 in debt on her credit cards. She would take her Ontario Works payments to make minimum payments on her credit card and would then withdraw money on the credit card to pay rent.

48  Well into her cross-examination, which lasted about four days, she testified that she believed she told Ms. [REDACTED] a couple of times that she was working and that Ms. [REDACTED] did not understand her. She asked Ms. [REDACTED] two or three times for an interpreter. Further, she told Ms. [REDACTED] in October of 2008 that she was in Ryerson and then told her two or three weeks later that she had quit because of language problems. She also told her she had a part time job. She later testified that she was "pretty sure" she mentioned it to Ms. [REDACTED].

49  Likewise, she testified in reference to the PAR completed with Ms. [REDACTED] on March 19th, 2009 that she had told her in 2008 that she had been going to Ryerson and that she got OSAP. She told her a thousand times that she was looking for work and once or twice she told her she had a job and it looks like the information did not click. Ms. [REDACTED] was always asking for her bank statements and it reflected her income. She was further questioned about an incident where she was mugged and her rent money was stolen. Because she could not pay her rent the issue was raised with Ms. [REDACTED]. Asked how this information was communicated to Ms. [REDACTED] the Accused testified that she probably found someone to speak on her behalf and then, "No I did find someone because it was an important issue."

50  In her dealings with Mr. [REDACTED] in February of 2008, she was asked how she knew to submit the volunteer forms he requested if she did not understand the language. She was also asked why she did not report working at Gemstar. She responded that she was sure the meeting was not in person and that she probably talked to him through somebody else. Mr. Ho's evidence is that the meeting was in person.

51  In terms of committing to Ryerson and indebting herself, she testified that she had to drop out because of her kidney infection and severe depression. Ultimately she indicated that it was because of her language skills.

52  In re-examination Ms. [REDACTED] testified that she never read the bottom of the cheques that were sent, the warnings. She would throw that part out.

53  Filed on consent was an agreed statement of facts relating to an aptitude test that Ms. [REDACTED] wrote for entrance to the Canadian Armed Forces in April of 2008. She failed the test - scoring in the first percentile depending on whether she was marked as an officer or as a non-commissioned officer. Her mark in the verbal skills category was either in the first or fifth percentile. Problem solving was in the third or eighth percentile and spatial ability in the fourth or twenty-first percentile. The test is usually suitable for those with grade 10 level English skills. The purpose of the test is not to test the candidate's ability to read, speak or write English. There's an overall failure rate of 50 percent. There are no language issues noted in Ms. [REDACTED]’s file.

54  Turning now to the law. To establish the actus reus of fraud the Crown must establish beyond a reasonable doubt that the Accused practiced deceit, lied or committed some other fraudulent act. Deprivation must then be shown to have occurred as a matter of fact.

55  In R. vs. Theroux, 1993, SCJ No. 42 the Supreme Court of Canada held that:

"The prohibited act is deceit, falsehood or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may as we have seen, consist in merely placing another's property at risk. The mens rea would then consist in the subjective awareness that one was undertaking a prohibited 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."

56  The Court goes onto say that intentional fraud excludes negligent misrepresentation. The Accused must intentionally lie or deceive.

57  Additionally this is a case where the defence called evidence. Accordingly the principles in R. v. W.D., [1991] 1 S.C.R. 742 apply.

58  Turning then to the defence evidence. Ms. [REDACTED] was not a credible witness. Much of her evidence strained credulity: that she was given a passing grade on her security guard exam even though she failed, and that the person hiring her [REDACTED], told her to copy other people's mock forms during the testing process. When originally asked inchief why she did not tell case workers about Gemstar, OSAP or Ryerson or provide documentation, it was because she did not know she had to report employment, because OSAP was not income and because she had quit Ryerson. She then testified for the first time, well into her crossexamination, that she believed she had told Ontario Works about working, going to Ryerson and getting OSAP. She then positively stated that she did tell the workers. Her evidence on these points developed as her testimony went along.

59  Additionally, she testified that she did not know anyone fluent in both Farsi and English who could assist her, yet fortuitously whenever she had a telephone meeting there was always someone there to translate for her. The "mistranslation" with the case workers was frequently cited as a reason for communications breakdowns. Her evidence as to why she left Ryerson was inconsistent. She initially testified it was because of her English, then it was because of depression and kidney problems. And then when challenged, reiterated that it was because of her English.

60  I do not believe that Ms. [REDACTED] told Ontario Works about her job, about receiving OSAP or going to or leaving Ryerson.

61  The Accused also testified that she did not understand her obligation to report her income, the OSAP loan or her attendance at Ryerson. Counsel points to her failed aptitude test for the Army as an indicator of her poor English comprehension in 2008. Counsel also points to the income tax statements that Ms. [REDACTED] filed that showed the Gemstar income in the years 2007 and 2009, and asks why would she expose her income to federal authorities knowing that the information could be shared with Ontario authorities. Counsel reiterated the Accused's evidence that she believed that in Canada, as in Iran, the government had access to all these documents. Counsel also pointed to notations during her Gemstar interview where the writer noted that, "She sometimes has difficulty answering questions."

62  Ms. [REDACTED], who repeatedly voiced her wish to go to university, got all zeros in her Ryerson classes. She says it was because her English was poor. Why would she otherwise undermine this lifetime goal? Counsel also points to notes made on April 4th, 2010 where Ms. [REDACTED] states she had not attended post-secondary school or received OSAP. On May 5th, 2010, a month later, at an appointment with another worker, she says she had received OSAP in 2008. Counsel argues that this shows the communication difficulty with the Accused. Additionally, she points to the Accused's forthrightness in bringing all required documents to Ms. [REDACTED] almost immediately upon request.

63  Ms. [REDACTED] presented as a very bright, resourceful and determined person. The onus is on the Crown to prove that the Accused knowingly undertook the acts which constitute the falsehood, deceit or other fraudulent means. In this case, Ms. [REDACTED] declared her Gemstar income to Canada Revenue. She believed, correctly as it turned out, that her filing could be accessed by Ontario Works. And while I have not found her to be a credible witness, that declaration of income, albeit to the wrong governmental body does cast a doubt as to her intention to defraud and whether she was knowingly engaging in acts of deception. And while the e-mail sent to "Mr. [REDACTED]" at Gemstar, the spelling test, the recording by workers of events that actually happened to Ms. [REDACTED]; her being robbed, wanting to work at NASA, her background while these certainly suggest a functional English, there is also the aptitude test for the Canadian Armed Forces to consider. A sample test contained questions such as "sad people are, a) honest, b) clever, c) unhappy, d) joyful" and similar questions. Ms. [REDACTED] who wrote this in April of 2008, scored in the first or fifth percentile relative to the other test takers in verbal skills. The other part, spatial reasoning and problem solving are largely language based problems as well. She scored low in those areas as well. And while this test may not be designed to test a person's ability to read, speak or write English, her scores are notable in terms of her very poor performance. Likewise, her marks at university in 2008 - all zeros - are arguably consistent with a lack of understanding of English.

64  In terms of the statement to Ms. [REDACTED], she did not take a verbatim statement. She wrote her notes afterward and did not have an independent recollection. Counsel submits that the comment attributed to the Accused which is "that welfare did not pay enough" could have been a response to why the Accused took a job. And, given the lack of verbatim recording, should not be relied on as incriminating.

65  I agree. The only evidence Ms. [REDACTED] gave as to what she asked was that she questioned the Accused about her undeclared earnings. The lack of context is troubling not because Ms. [REDACTED] was not a fair witness, but because of the inference I'm being asked to draw six years later, without more, in terms of the whole context of the conversation in terms of the back and forth between Ms. [REDACTED] and the Accused.

66  There's also evidence of the Accused contacting Ontario Works when she left the country in 2009 so that her support from Ontario Works could be suspended - an act that suggests a lack of intention to deceive, albeit on a slightly different issue.

67  The Crown submits that the case is very strong against Ms. [REDACTED] and I can certainly understand why the Crown would make that submission. The Toronto Employment service workers were competent, they were empathetic and professional and impressive witnesses. But when the case is stripped down to whether the mens rea has been established, I have a doubt.

68  There are areas of disclosure, areas of compliance and some evidence, i.e. the Armed Forces test, to cast doubt on her intent to deceive and her understanding of her obligation to report. And while it is hard to imagine that the Accused did not appreciate the obligation to report income, in all the circumstances, for the reasons I've just stated, I'm not satisfied that the Crown has established the case beyond a reasonable doubt. So Ms. [REDACTED] you're free to go.


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