



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Fagan, 2013 ONCA
    32

DATE: 20130121

DOCKET: C53233

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Colleen Fagan

Appellant

David Russell, for the appellant

Karen Shai, for the respondent

Heard and released orally: January 17, 2013

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

ENDORSEMENT

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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

[10]

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

[11]

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

[12]

The
    appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


