R. v. Rehberg (J.), (1993) 127 N.S.R.(2d) 331 (SC)

• Judge: Kelly, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 26, 1993
• Jurisdiction: Nova Scotia
• Citations: (1993), 127 N.S.R.(2d) 331 (SC)

R. v. Rehberg (J.) (1993), 127 N.S.R.(2d) 331 (SC);

  355 A.P.R. 331

MLB headnote and full text

Her Majesty The Queen (informant) v. Janice Rehberg (defendant)

(C.R. No. 12746)

Indexed As: R. v. Rehberg (J.)

Nova Scotia Supreme Court

Kelly, J.

November 26, 1993.

Summary:

The accused was a 39 year old single mother with six children. She was charged with fraud contrary to s. 380(1)(a) of the Criminal Code on the basis that she falsely obtained social assistance benefits. It was alleged, inter alia, that she failed to report that she was cohabiting with a man contrary to the Family Benefits Act Regulations, s. 21(1)(ii) and was thus ineligible for benefits. The accused argued that the "man-in-the-house rule" violated her rights under ss. 7 and 15(1) of the Charter.

The Nova Scotia Supreme Court stayed the fraud charge, holding that the "man-in-the-house" rule was constitutionally flawed as it presently exists and it would therefore be inappropriate to allow the criminal charge to proceed.

Civil Rights - Topic 5648

Equality and protection of the law - Social assistance legislation - A 39 year old single mother with six children was charged with fraud under the Criminal Code for falsely obtaining social assistance benefits (i.e., failing to report that she was cohabiting with a man as required by the Family Benefits Act Regulations, s. 21(1)(ii)) - The Nova Scotia Supreme Court held that the "man-in-the-house" rule was discriminatory within the meaning of the Charter, s. 15(1), and was not justi­fied under s. 1 of the Charter - As a rem­edy, the court stayed the criminal fraud charge, stating that as the basis of a crimi­nal charge, the man-in-the-house rule is constitutionally flawed as it presently exists - See paragraphs 1 to 106.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - [See Civil Rights - Topic 5648 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 5648 ].

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - The accused, a 39 year old single mother with six children, was charged with fraud for falsely obtain­ing social assistance benefits - In her defence the accused raised a Charter argu­ment and sought to introduce seven written authorities relating to the economic status of women, particularly single mothers, and generally on the history and social effects of social welfare policy - The Crown objected to admission of the extrinsic evidence of these "expert" authors - The Nova Scotia Supreme Court admitted the extrinsic evidence in the absence of a specific challenge to the accuracy or qual­ifications of any of the material - See paragraphs 30 to 32.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5648 ].

Criminal Law - Topic 2005

Fraudulent transactions - Fraud - Elements of - The Nova Scotia Supreme Court discussed the actus reus and mens rea required to establish fraud within the meaning of s. 380(1) of the Criminal Code - See paragraphs 50 to 65.

Criminal Law - Topic 2137

Fraudulent transactions - Welfare fraud - [See Civil Rights - Topic 5648 ].

Criminal Law - Topic 2137

Fraudulent transactions - Welfare fraud - The accused, a 39 year old single mother with six children, was charged with fraud under the Criminal Code for falsely ob­taining social assistance benefits (i.e., continuing to receive benefits when she failed to report facts that would make her ineligible for benefits) - It was alleged, inter alia, that she failed to report to au­thorities that she had cohabited with a man in excess of one year and failed to advise that she received certain funds from the man - The Nova Scotia Supreme Court held that the man's contributions were not a financial benefit for the accused in that they were not "income" that would be required to be reported to the authorities - See paragraphs 1 to 74.

Criminal Law - Topic 2137

Fraudulent transactions - Welfare fraud - The accused, a 39 year old single mother with six children, was charged with fraud under the Criminal Code for falsely ob­taining social assistance benefits (i.e., continuing to receive benefits when she failed to report facts that would make her ineligible for benefits) - It was alleged, inter alia, that she failed to advise authori­ties that she received Child Tax Credits which when added to her savings exceeded $2,500 and she failed to report that she purchased a home and continued to claim and receive benefits as rental expenses - The Nova Scotia Supreme Court held that there was no deprivation to the social assistance department by her failure to report her savings and home purchase, therefore, no conviction would be imposed for those acts - See paragraphs 1 to 74.

Social Assistance - Topic 2074

Offences - Receiving unentitled assistance - [See Civil Rights - Topic 5648 and second and third Criminal Law - Topic 2137 ].

Cases Noticed:

Reference Re Family Benefits Act (N.S.) Section 5 (1986), 75 N.S.R.(2d) 338; 186 A.P.R. 338 (C.A.), refd to. [para. 22].

Coates v. The Citizen et al. (1988), 85 N.S.R.(2d) 146; 216 A.P.R. 146 (T.D.), refd to. [para. 32].

Dartmouth/Halifax County Regional Hous­ing Authority v. Sparks (1993), 119 N.S.R.(2d) 91; 330 A.P.R. 91 (C.A.), refd to. [para. 32].

R. v. Morgentaler, [1993] 1 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 32].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R.(4th) 456; 43 R.F.L.(3d) 345, refd to. [para. 32].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250; 73 D.L.R.(4th) 686, refd to. [para. 32].

R. v. Olan, Hudson and Hartnett, [1978] 2 S.C.R. 1175; 21 N.R. 504; 41 C.C.C.(2d) 145, refd to. [para. 51].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184; 79 C.C.C.(3d) 449, refd to. [para. 51].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C. 161; 79 C.C.C.(3d) 466, refd to. [para. 51].

R. v. Harris (1989), 8 W.C.B. 89 (Ont. Dist. Ct.), refd to. [para. 56].

R. v. Winning (1973), 12 C.C.C.(2d) 449 (Ont. C.A.), refd to. [para. 64].

R. v. Long (1990), 61 C.C.C.(3d) 157 (B.C.C.A.), refd to. [para. 64].

R. v. Doren (1982), 66 C.C.C.(2d) 448 (Ont. C.A.), refd to. [para. 64].

R. v. Bobbie (1988), 29 O.A.C. 303; 43 C.C.C.(3d) 187 (Ont. C.A.), refd to. [para. 64].

R. v. Lacombe (1990), 37 Q.A.C. 67; 60 C.C.C.(3d) 489 (C.A.), refd to. [para. 64].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 89].

Irwin Toy Ltd. v. Québec (Procureur gén­éral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 100].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1, refd to. [para. 101].

R. v. CIP Inc., [1992] 1 S.C.R. 843; 135 N.R. 90; 52 O.A.C. 366; 12 C.R.(4th) 237; 71 C.C.C.(3d) 129, refd to. [para. 102].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 88]; sect. 7, sect. 15(1) [para. 2 et seq.]; sect. 24(1) [para. 101].

Criminal Code, R.S.C. 1985, c. C-46, sect. 380(1)(a) [paras. 1, 50].

Family Benefits Act, R.S.N.S. 1989, c. 158, sect. 2 [para. 23]; sect. 5 [para. 24]; sect. 13(4) [para. 61].

Family Benefits Act Regulations (N.S.), sect. 3(1)(d) [para. 29]; sect. 5, sect. 6 [para. 25]; sect. 13(e)(i), sect. 13(e)(ii) [para. 29]; sect. 14(1), sect. 14(3) [para. 67]; sect. 21(1)(i), sect. 21(1)(ii) [para. 25]; sect. 21(2)(ii) [para. 77]; sect. 21(3)(i), sect. 21(3)(ii), sect. 21(9) [para. 25].

Mothers' Allowances Act, S.N.S. 1930, c. 4, generally [para. 21].

Social Assistance Act, S.N.S. 1956, c. 7, generally [para. 21].

Social Assistance Act, S.N.S. 1966, c. 13, generally [para. 27].

Social Assistance Act, S.N.S. 1970, c. 16, sect. 7(d) [para. 21].

Authors and Works Noticed:

Ewart, J.D., Criminal Fraud (1986), pp. 98, 99 [para. 59].

Gunderson, M., L. Muszynski and J. Keck, Women and Labour Market Poverty (1990), generally [para. 32]; pp. 16 to 17 [para. 36].

Haddad, Jane, Sexism and Social Welfare Policy: The Case of Family Benefits in Ontario (Ontario Institute for Studies in Education) (1985), pp. 10, 11 [para. 42].

National Council of Welfare Report, Women and Poverty Revisited (1990), pp. 13, 14 [para. 38]; 69 [para. 39].

Ross and Shillington, The Canadian Fact Book on Poverty - 1989 (1989), p. 47 [para. 37].

Smith, Lynn, Equality Rights under the Canadian Charter of Rights and Free­doms, Paper presented to Canadian Judi­cial Council Seminar (1993), p. 6 [para. 84].

Counsel:

Vince Calderhead, for the defendant;

Gregory Lenehan, for the Crown, with the assistance of Alex Cameron.

This case was heard in Halifax, Nova Scotia, on May 17, 18, 19, September 16 and November 26, 1993, by Kelly, J., of the Nova Scotia Supreme Court, who delivered the following judgment on November 26, 1993, and released written reasons on Janu­ary 25, 1994.