R. v. Yates (A.E.), 2002 BCCA 583

• Judge: Prowse, Levine and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Thursday September 19, 2002
• Jurisdiction: British Columbia
• Citations: 2002 BCCA 583;(2002), 174 B.C.A.C. 119 (CA)

R. v. Yates (A.E.) (2002), 174 B.C.A.C. 119 (CA);

    286 W.A.C. 119

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. OC.042

Regina (respondent) v. Anne Yates (appellant)

(CA026784; 2002 BCCA 583)

Indexed As: R. v. Yates (A.E.)

British Columbia Court of Appeal

Prowse, Levine and Thackray, JJ.A.

October 28, 2002.

Summary:

The accused was convicted of one count of defrauding the Ministry of Human Resources of money in excess of $5,000. The accused's conviction appeal was dismissed. See [2001] B.C.A.C. Uned. 20. The accused was given a two year suspended sentence, including 200 hours of community service, and ordered to pay restitution of $13,124. The accused appealed the sentence, particularly the restitution order.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The British Columbia Court of Appeal held that when determin­ing whether a restitution order was appro­priate, the court must consider, inter alia, both the present and future ability of the accused to pay restitution - Further, where the circumstances of the offence were particularly egregious (i.e., where a breach of trust was involved), a restitution order may be made even where there did not appear to be any likelihood of repayment - See paragraphs 12 to 20.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The accused, age 58, was convicted of defrauding the Ministry of Human Resources of over $5,000 (wel­fare fraud) - She claimed to be suffering serious health, emotional and financial difficulties during this time - Her gross income was $801/month, her expenses $600/month, leaving her with $201/month for all other living expenses - On a dis­ability pension - No breach of trust involved - The British Columbia Court of Appeal held that the court could consider the fact that the accused had equity of $100,000 in a home when determining whether to impose a restitution order - The court affirmed the imposition of a restitu­tion order of $13,124, in addition to a two year suspended sentence with 200 hours of community service.

Criminal Law - Topic 5795.1

Punishments (sentence) - Restitution - Appeals (incl. standard of review) - [See Criminal Law - Topic 6201].

Criminal Law - Topic 5859

Sentence - Fraud - [See second Criminal Law - Topic 5792].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sen­tence - Powers of appeal court - Standard of review - The British Columbia Court of Appeal referred to the standard of review to be applied by an appellate court when reviewing orders for restitution - See para­graph 21.

Cases Noticed:

R. v. Zelensky, Eaton (T.) Co. and Canada (Attorney General) et al., [1978] 2 S.C.R. 940; 21 N.R. 372, consd. [para. 8].

R. v. Siemens (K.G.) (1999), 138 Man.R.(2d) 90; 202 W.A.C. 90; 136 C.C.C.(3d) 353 (C.A.), refd to. [para. 11].

R. v. Fitzgibbon (C.D.), [1990] 1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81, consd. [para. 12].

R. v. Scherer (1984), 5 O.A.C. 297; 42 C.R.(3d) 376; 16 C.C.C.(3d) 30 (C.A.), leave to appeal refused (1984), 58 N.R. 80; 7 O.A.C. 80 (S.C.C.), consd. [para. 13].

R. v. Moscone, [1985] B.C.J. No. 1755 (C.A.), consd. [para. 14].

R. v. Biegus (J.S.) (1999), 127 O.A.C. 239; 141 C.C.C.(3d) 245 (C.A.), consd. [para. 14].

R. v. Hoyt (L.K.) (1992), 19 B.C.A.C. 231; 34 W.A.C. 231; 77 C.C.C.(3d) 289 (C.A.), refd to. [para. 15].

R. v. Brown (R.L.) (1999), 130 B.C.A.C. 250; 211 W.A.C. 250 (C.A.), refd to. [para. 16].

R. v. Marcelino (M.) (1998), 107 B.C.A.C. 43; 174 W.A.C. 43 (C.A.), consd. [para. 18].

R. v. Devgan (R.) (1999), 121 O.A.C. 265; 136 C.C.C.(3d) 238 (C.A.), leave to appeal refused (2000), 254 N.R. 393; 134 O.A.C. 396 (S.C.C.), refd to. [para. 21].

R. v. Heath (1984), 6 Cr. App. R.(S.) 97 (C.A.), consd. [para. 29].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 738(1)(a) [para. 6].

Counsel:

Appellant appeared in person;

B. McKinley, for the respondent.

This appeal was heard on September 19, 2002, with further materials received on September 20 and October 10, 2002, at Vancouver, British Columbia, by Prowse, Levine and Thackray, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered by Prowse, J.A., on October 28, 2002.