



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moran, 2019 ONCA 217

DATE: 20190320

DOCKET: C64539

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patricia Moran

Appellant

Patricia Moran, acting in person

Michael Fawcett, for the Attorney General for Ontario

Gerald Chan, duty counsel

Heard: March 12, 2019

On appeal from the conviction entered on June 23, 2017
    and the sentence imposed on October 6, 2017 by Justice John D. Evans of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario Court of Justice, the
    appellant was convicted of a single count of fraud under $5,000 on which the
    Crown proceeded by indictment. She was sentenced to a term of imprisonment of
    three months and ordered to pay restitution of $6,339.20 to the District of
    Muskoka, the victim of the fraud.

[2]

With the assistance of duty counsel, she appeals both conviction and
    sentence.

The Conviction Appeal

[3]

The conviction appeal was not pressed either by duty counsel or by the
    appellant. Our review of the record satisfies us that the conviction was fully
    warranted on the evidence adduced at trial. It is neither unreasonable nor
    tainted by any error that would warrant our intervention.

[4]

The appeal from conviction is dismissed.

The Sentence Appeal

[5]

Both duty counsel and the appellant made submissions on the appeal from
    sentence. We also received fresh evidence about the appellants immigration
    status and her medical condition.

[6]

Duty counsel and the appellant contended, as had trial counsel for the
    appellant, that a fit sentence is a conditional discharge, not entry of a
    conviction followed by a suspended sentence or a term of incarceration.

The Circumstances of the Offence

[7]

The offence of which the appellant was convicted involved the receipt of
    Ontario Works Assistance Benefits of over $6,000 over a period of 8 months
    while she was a student at an Ontario university.

[8]

During the application process it was made clear to the appellant that
    she was to disclose
any
income she received from any source, employment
    or otherwise. This she failed to do. She did not disclose that she had money in
    bank accounts or that she had received funds from a job she held in the
    hospitality industry. In this way, she dishonestly deprived the Department of
    Social Services of the District of Muskoka of the funds alleged. Her conduct
    was knowing and deliberate.

[9]

During the period of the fraud committed in this case, the appellant was
    bound by the terms of a probation order imposed as part of a conditional
    discharge she received on findings of guilt of theft and possession of property
    obtained by crime of a value of less than $5,000.

The Circumstances of the Offender

[10]

The
    appellant was 35 years old at the time of the offence and a full-time
    university student. She is now 39. She has received her undergraduate degree. She
    has overcome significant medical challenges and a prior abusive relationship.
    Her health challenges remain. She continues to pursue assistance from several
    available services principally in connection with her health issues.

[11]

The
    appellant was born in Ireland. She is not a Canadian citizen or a permanent
    resident. She is a foreign national who is in Canada on a student visa.

[12]

As
    a foreign national convicted in Canada of an indictable offence, the appellant
    is inadmissible to Canada on grounds of criminality under s. 36(2)(a) of the
Immigration
    and Refugee Protection Act
. The consequences of inadmissibility for a
    foreign national are that she is deportable from Canada and is ineligible to
    become a permanent resident or to apply to enter or remain in Canada unless
    given an exemption by the Department of Immigration, Refugees and Citizenship
    Canada.

[13]

A
    deportation order was issued against the appellant in October, 2017 as a result
    of the conviction with which we are concerned.

The Positions of the Parties at Trial

[14]

At
    trial, Crown counsel sought a sentence of imprisonment of 5-8 months, a
    free-standing restitution order in the amount of $6,339.20, and various
    ancillary orders.

[15]

Experienced
    defence counsel sought a conditional discharge, but acknowledged that such a
    disposition would seem unlikely in light of the paramount principles of
    sentencing applicable to frauds of this nature and the aggravating circumstance
    that this offence was committed while the appellant was bound by a probation
    order included in a conditional discharge for a cognate offence.

The Arguments on Appeal

[16]

In
    this court duty counsel and the appellant focused their submissions on the
    collateral consequences of a conviction on the appellants immigration status.
    She wants to stay in Canada to pursue her volunteer activities and address her
    health concerns so that she may obtain gainful employment appropriate for her
    education achievements. With a conditional discharge, the absence of a
    conviction will not render her inadmissible to Canada. And a conditional
    discharge is not contrary to the public interest.

[17]

The
    respondent acknowledges that this is a sympathetic case but points out that the
    sentence imposed is at the very low end of the range of sentence appropriate
    for this type of offence committed by a recidivist bound by a probation order
    imposed for a similar crime.

Discussion

[18]

It
    is well established that, absent an error in principle, a failure to consider a
    relevant factor or the erroneous consideration of aggravating or mitigating
    factors that had an impact on the sentencing decision, we are disentitled to
    interfere with the sentence imposed at trial:
R. v. Lacasse
,
2018
    SCC 64, at para. 44. Similarly, we cannot intervene simply because we would
    have weighed relevant aggravating or mitigating factors differently:
Lacasse
,
    at para. 49;
R. v. Nasogaluak
, [2010] 1 S.C.R. 206, at para. 35.
    Further, a sentencing judges decision about the applicable range of sentence
    or where within that range a sentence should be located is equally impervious
    to appellate intervention unless the sentence imposed is demonstrably unfit:
Lacasse
,
    at para. 51.

[19]

In
    this case, the error in principle alleged is that the trial judge assigned
    inadequate weight to the appellants precarious immigration status in
    determining the sentence he imposed. The appellant acknowledges that the
    sentencing judge did consider the immigration consequences in his sentencing
    decision. But a more considered assessment of those consequences was required.

[20]

We
    are unable to accept this submission. The sentence imposed was fit.

[21]

In
    cases such as this involving fraud in connection with funds earmarked for
    social assistance for the disadvantaged, the predominant sentencing objectives
    are denunciation and deterrence. It is all the more so where the offender is a
    recidivist who within months of findings of guilt for cognate offences
    re-offends while bound by the terms of a probation order. The offending conduct
    in this case was deliberate and extended over a period of eight months.  Setting
    to one side the influence of the collateral immigration consequences, the
    application of the controlling sentencing objectives, principles and
    aggravating and mitigating factors warranted a term of imprisonment in the
    mid-reformatory range.

[22]

The
    sentencing judge considered but rejected a conditional discharge as the
    appropriate sentencing disposition. He did so on the basis that it was not in
    the public interest to make such an order in respect of an offender who, within
    months of being sentenced for similar crimes and while bound by a probation
    order, proceeded over the next several months to practise deceit to obtain
    social assistance to which she was not entitled.

[23]

The
    sentencing judge considered the collateral immigration consequences to the
    appellant when deciding on the sentence he would impose. That another judge in
    equivalent circumstances might have reached a different conclusion does not
    mean that this judge erred. Immigration consequences of a sentence for a
    particular offender are a relevant factor for a sentencing judge to consider.
    But they provide no warrant for the imposition of a sentence which is not true
    to the governing objectives and principles of sentencing including the fundamental
    principle of proportionality:
R. v. Pham
,
[2013] 1 S.C.R. 739,
    at paras. 14-16. The sentence imposed here was well within the range of
    appropriate sentencing dispositions, indeed at the very low end of that range. By
    no means can it be said that this sentence is demonstrably unfit.

[24]

For these reasons, although we would grant leave to appeal sentence, the
    appeal from sentence is dismissed.

David Watt J.A.

C.W. Hourigan
    J.A.

Grant Huscroft
    J.A.


