Résumé des règles applicables à l'insouciance et l'aveuglement volontaire dans le contexte de la fraude

R v Fast, 2014 SKQB 84

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[257]               Further considerations are appropriate in this case. To establish mens rea, wilful blindness and/or recklessness can exist in relation to either or both the conduct or consequences of the actus reus of the offence.

[258]               In The Law of Fraud and Related Offences, supra, at pages 11‑8.6 to 11‑9, a useful summary of the use of wilful blindness and recklessness in relation to fraud is provided:

1)   Fraudulent intent can be established upon proof that the accused was reckless or wilfully blind with respect to either or both of the conduct and consequence elements of the actus reus of fraud;

2)   An accused is reckless with respect to the conduct element of the actus reus of fraud when he or she is knowingly careless with respect to the facts upon which deceit, falsehood, or other fraudulent means are found. The accused is aware that there is a risk that such conduct may be prohibited, but nevertheless persists in spite of the risk;

3)   An accused is reckless with respect to the consequence element of the actus reus of fraud when he or she is knowingly careless with respect to the occurrence of the consequence of deprivation. The accused is aware that there is a risk that such conduct may bring about the prohibited consequence, but nevertheless persists in spite of the risk;

4)   An accused is wilfully blind with respect to the conduct element of the actus reus of fraud when he or she is aware that certain facts exist which would make such conduct a deceit, a falsehood, or other fraudulent means, but deliberately refrains from making inquiries so as to remain ignorant;

5)   An accused is wilfully blind with respect to the consequence element of the actus reus of fraud when he or she is aware that certain facts exist giving rise to a belief that the prohibited consequences will flow from such conduct, but deliberately refrains from making inquiries so as to remain ignorant.

 

[259]               In the recent decision of R. v. Parkes, 2012 SKQB 164, 396 Sask.R. 201, Acton J. considered the concept of wilful blindness in the context of fraud. The matter involved an accused who had deposited rent cheques from an elderly resident of her care home even though Veterans Affairs paid for the expenses in full each month. Acton J. found that if she did not know that Veterans Affairs was paying her client’s expenses, she would have been wilfully blind or reckless of that fact because monthly invoices were sent to Veterans Affairs from her care home: see paragraph 29.

[260]               In R. v. Pchajek, 2009 MBQB 265, [2010] 5 W.W.R. 341, the accused was charged with both fraud and theft. She paid for personal items out of her employer’s petty cash. She admitted to taking the funds but denied having intended to steal from or defraud her employer. Evidence at trial showed that she regularly intermingled her personal money with the petty cash account but did not keep track of same. As a result of this and other conduct, the court found that the actus reus of the offence had been established (dishonest conduct giving rise to a deprivation).

[261]               In determining the mens rea of the conduct element, the court found that she was both reckless and wilfully blind. The accused argued that she did not have subjective knowledge that her spending exceeded the personal funds she had deposited into the petty cash, and thus, she did not have the requisite mens rea. The court found that she was wilfully blind to this fact. The court also determined that she was reckless in failing to take any steps in trying to reconcile her personal funds and the petty cash funds.

[262]               The court also found that the accused was wilfully blind with respect to mens rea in relation to the consequence element of the actus reus. The court held that even if the accused was not subjectively aware of the amount she owed to the petty cash, the failure to have this knowledge was solely because she chose not to investigate the amount of money she owed.

[263]               The court has reviewed other cases involving these concepts, including: R. v. Hucal, 2001 ABQB 606, 291 A.R. 1 (in the absence of actual knowledge, the court has the ability to convict the accused on the basis of wilful blindness); R. v. Poonai (2003), 2003 CanLII 87744 (ON CJ), 175 C.C.C. (3d) 8, [2003] O.J. No. 1927 (QL) (wilful blindness is sufficient to satisfy knowledge), and R. v. Ellis, 2007 ABQB 722, 426 A.R. 1 (guilt on a charge of fraud can also be proven on the basis of wilful blindness).

Enseignements de Brenda L. Nightingale (The Law of Fraud and Related Offences) sur la supercherie, le mensonge et la mens rea de l'infraction de fraude (insouciance, aveuglement volontaire et l'erreur)

R. v. Pchajek, 2009 MBQB 265

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[33]         In Théroux at p. 457, McLachlin J. referred to cases in which fraud by other fraudulent means has been found in the following factual situations: the use of corporate funds for personal purposes, non-disclosure of important facts, unauthorized diversion of funds and unauthorized arrogation of funds or property.

[34]         Nightingale, Brenda L., considered the actus reus of fraud in The Law of Fraud and Related Offences, loose leaf ed. (Scarborough: Carswell, 2008), and she offered the following additional principles at p. 2-23 regarding fraud by deceit and by falsehood:

-        deceit is defined as inducing a person to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false;

-        the subsequent honouring of intention or a future undertaking does not remove culpability;

-        deceit does not have to be practiced on the victim, but there must be a causal connection between the deceit and the deprivation suffered by the victim;

-        the failure to avoid the deception by the person to whom the misrepresentation was made does not remove the culpability;

-        deceit is not a required element of the actus reus of fraud, but is merely one of the means by which fraud may be practiced.

At p. 2-24, Nightingale adopted the definition of falsehood as being a “falsity, something untrue, contrary to fact; lies, lying”.

[35]         In Zlatic and Théroux, the Supreme Court held that the law regarding the mens rea of fraud is as follows:

-        the mens rea of fraud is established by proof of the following:

(i)      subjective knowledge of the prohibited act; and

(ii)      subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk);

-        the test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility;

-        subjective knowledge does not require that the crown prove exactly what was in the accused’s mind – the inference of subjective knowledge may be drawn from the facts as the accused believed them to be;

-        knowledge of the consequences includes recklessness as to those consequences – i.e., the accused undertook acts that could bring about a loss or risk of loss and was reckless as to whether or not the loss ensued;

-        it is no defence to a charge of fraud for the accused to say that he did not intend to cause a loss or that he believed that his actions would subsequently be ratified;

-        it is also not a defence to a charge of fraud for the accused to state that he did not believe that his conduct was wrong or that no one would be hurt in the end – i.e., the accused does not have to subjectively appreciate the dishonesty of his acts.

[36]         The mens rea of fraud is described by Nightingale, at p. 9-14, as follows:

-        mens rea  can be defined as:

(a)      knowledge or recklessness as to the facts that constitute a “deceit,” a “falsehood” or “other fraudulent means”; and

(b)     foresight or recklessness as to the facts found in law to constitute “deprivation”;

-        a belief by the accused that his or her conduct is not dishonest will not negate a finding of mens rea;

-        a belief by the accused that his or her conduct will not cause deprivation will not negate a finding of mens rea.

[37]         Nightingale considered the doctrines of recklessness, wilful blindness and mistake in relation to the intent required for fraud.  She provided the following summary of the law regarding recklessness and wilful blindness at p. 11-8.5:

(1)              fraudulent intent can be established upon proof that the accused was reckless or wilfully blind with respect to either or both of the conduct and consequence elements of the actus reus of fraud;

(2)              an accused is reckless with respect to the conduct element of the actus reus of fraud when he or she is knowingly careless with respect to the facts upon which deceit, falsehood, or other fraudulent means are found – the accused is aware that there is a risk that such conduct may be prohibited, but nevertheless persists in spite of the risk;

(3)              an accused is reckless with respect to the consequence element of the actus reus of fraud when he or she is knowingly careless with respect to the occurrence of the consequence of deprivation – the accused is aware that there is a risk that such conduct may bring about the prohibited consequence, but nevertheless persists in spite of the risk;

(4)              an accused is wilfully blind with respect to the conduct element of the actus reus of fraud when he or she is aware that certain facts exist that would make such conduct a deceit, falsehood, or other fraudulent means, but deliberately refrains from making inquiries so as to remain ignorant;

(5)              an accused is wilfully blind with respect to the consequence element of the actus reus of fraud when he or she is aware that certain facts exist giving rise to a belief that the prohibited consequences will flow from such conduct, but deliberately refrains from making inquiries so as to remain ignorant.

[38]         Nightingale provided the following summary of the law regarding mistake at pp. 11-17 – 11-18:

(1)      An honest though mistaken belief as to the facts upon which a Court will find in law to constitute “deceit, falsehood, or other fraudulent means” will negative a finding of mens rea with respect to the conduct element of the actus reus;

(2)      An honest though mistaken belief with respect to whether a Court will find in law that certain facts constitute “deceit, falsehood or other fraudulent means” will not negative a finding of mens rea with respect to the conduct element of the actus reus;

(3)      An honest though mistaken belief with respect to whether conduct will be characterized as “dishonest” will not negative a finding of mens rea with respect to the conduct element of the actus reus;

(4)      An honest though mistaken belief with respect to the facts upon which a Court will find in law to constitute “deprivation” will negative a finding of mens rea with respect to the consequence element of the actus reus;

(5)      An honest though mistaken belief with respect to whether a Court will find in law that certain facts constitute “deprivation” will not negative a finding of mens rea with respect to the consequence element of the actus reus;

(6)      An honest though mistaken belief with respect to whether the consequence which flowed from the dishonest conduct will be characterized as “deprivation” will not negative a finding of mens rea with respect to the consequence element of the actus reus.

Une intention subjective de « tromper » n’est pas un élément essentiel de l’infraction de fraude, ce qui implique que la Couronne n’a pas à prouver une intention malicieuse, malveillante ou de nuire chez l’accusé

R. v. Earle, 2021 ONCA 34

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[50]      This argument rests on an erroneous understanding of the mental element for fraud under s. 380 of the Criminal Code: that the Crown must prove that the appellant subjectively appreciated the dishonesty of his acts. This understanding of the mental element is precisely what the Supreme Court rejected in R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29, at p. 49:

As is pointed out in Théroux [R. v. Theroux 1993 CanLII 134 (SCC), [1993] 2 SCR 5], released concurrently, fraud by “other fraudulent means” does not require that the accused subjectively appreciate the dishonesty of his or her acts. The accused must knowingly, i.e., subjectively, undertake the conduct which constitutes the dishonest act, and must subjectively appreciate that the consequences of such conduct could be deprivation, in the sense of causing another to lose his or her pecuniary interest in certain property or in placing that interest at risk. [Emphasis added.]

This accused knew precisely what he was doing and knew that it would have the consequence of putting his creditors’ pecuniary interests at risk.

[51]      The point is stated succinctly in R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 81:

[A] subjective intent to mislead is not an essential element of the offence of fraud. Instead, all that is required is subjective knowledge of the prohibited act, and that the act could have as a consequence the deprivation of another.

Revue du droit par la Cour d'appel de l'Alberta concernant ce que constitue la privation en matière de fraude

R v Iyer, 2020 ABCA 439

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[46]           “The element of deprivation is satisfied on proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim. It is not essential that there be actual economic loss as the outcome of the fraud”: Olan at 1182. Deprivation can also exist where an opportunity to prevent loss is taken away: see R v Gaetz, 1992 CanLII 2509 (NS CA), 77 CCC (3d) 445, affirmed 1993 CanLII 82 (SCC), [1993] 3 SCR 645, 84 CCC (3d) 351; or, where an opportunity to profit is extinguished: see R v Kirkwood, 1983 CanLII 1953 (ON CA), 148 DLR (3d) 323.

[47]           Mr Iyer submits that the jurisprudence does not go so far as to recognize that the victims in this case were deprived of a pecuniary interest sufficient to satisfy a conviction for fraud by “other fraudulent means.”

[48]           In many cases of fraud, particularly those which deal with the misuse of corporate assets, the victims are creditors, shareholders or the corporation itself. Zlatic is an example of fraud on creditors, as are R v Geddes, 1979 CanLII 2854 (MB CA), 52 CCC (2d) 230 and Gaetz. Olan is an example of fraud on the corporation and its shareholders; see also R v Ruhland, 1998 CanLII 6138 (ON CA), 123 CCC (3d) 262.

[49]            We do not find the jurisprudence as restrictive as Mr Iyer suggests. Indeed, courts have generously interpreted “deprivation” since Olan.

[50]           In R v Currie; R v Bruce (1984), 5 OAC 280 (CA), [1984] OJ No 147 (QL), the accused solicited investments in a factoring scheme where he was to purchase the accounts receivable of a company known as Water-Eze Products Ltd. (Water-Eze) at a 5% discount. Funds specifically invested for the Water-Eze factoring scheme were actually invested in a company known as Aerobec and were eventually lost. The trial judge instructed the jury that the dishonest act need only be a cause of deprivation, not the exclusive cause of deprivation. A jury convicted the accused of fraud and the Court of Appeal found no error in the jury direction.

[51]           In R v Riesberry, 2015 SCC 65, the accused was a licensed trainer of Standardbred horses. At a horse race, he was caught on camera drugging one horse, and caught trying to sneak syringes with drugs into the track for the purpose of doing the same thing to another horse. Speaking to deprivation, the Court found that this conduct caused a risk of deprivation to the betting public and held at para 25:

...it created the risk of betting on a horse that, but for Mr. Riesberry’s dishonest acts, might have won and led to a payout to the persons betting on that horse…Mr. Riesberry’s dishonest conduct created a risk that bettors would be deprived dishonestly of something which, but for the dishonest act, they might have obtained.

[52]           In R v Di Giuseppe, 2010 ONCA 91, through the control of three corporations, the accused caused these companies to fail to report taxable income and supplies. While no income tax returns were filed, the accused’s dishonest acts in creating false records, destroying records, and in deliberately failing to file returns made it impossible for the corporations to comply with their legal duty to file income tax returns. This caused a deprivation by placing public economic interest at risk through intentionally directing the diversion of revenue for the purposes of undervaluing the taxable income of the accused’s corporations.

[53]           The breadth of cases in which a deprivation has been found speaks to the flexibility with which courts have interpreted the idea of deprivation in the context of fraud. In Gaetz, the Court cited with approval Ewart on Criminal Fraud (1986) at p. 121:

As a group, all of the cases reviewed in this part demonstrate the current reach of the law of fraud. They show that the term "prejudice to economic interests", which became part of the law of fraud as a result of the Olan decision, is to be given a generous interpretation. If the victim of an alleged fraud is denied the opportunity to make a profit, or denied the opportunity to prevent a loss, deprivation exists. Neither the profit nor the loss need be certain nor quantifiable. Regardless of whether the case involves a breach of copyright, interference with a gaming event, use of an employer's facilities for personal gain, or the sabotage of a loss-prevention system, the law of fraud provides a response. [emphasis added]

[54]           A similar approach to the interpretation of “deprivation” was supported by the majority in Zlatic at 48-49:

The fact that the appellant had legal title to the monies he gambled away does not alter the result. Fraud looks to the substance of the matter. The authorities make it clear that it is unnecessary for a defrauding party to profit from his or her fraud in order to be convicted; it is equally unnecessary that the victims of a fraud suffer actual pecuniary loss in order that the offence be made out [citations omitted]. What is essential is not the formalities of profit or actual pecuniary loss, but that dishonest commercial practices which subject the pecuniary interest of others to deprivation or the risk of deprivation be visited with the criminal sanction. It follows that the fact that the defrauder may have legal title to the property affords no defence; it is not his title, but how he has obtained it and what he does with it that is important. [emphasis added]

La réalité de la vie commerciale exige que la ligne de démarcation entre les actes visant à préserver l'entreprise, même s'ils sont désespérés, et les actes frauduleux soit tracée avec minutie

R. v. Lazeo, 2000 BCCA 483

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[47]   Finally, unlike Zlatic, there was no finding by the trial judge in the case at bar that Mr. Lazeo bought the bars from Dr. Aubert without concern for payment.  Where Mr. Zlatic diverted money from his business for his own purposes, the evidence in the case at bar demonstrated that Mr. Lazeo, on  receiving a poor price on the resale of the platinum bars, desperately, and perhaps in foolish ways, attempted to find the money to pay his business debt.  In my view there was insufficient evidence before the trial judge for him to conclude that the appellant deliberately, or recklessly used the funds of his business in an unauthorized manner or that by dishonest means he put his ability to pay his creditor, Dr. Aubert, out of his reach.

[48]   As Carthy J.A. said in R. v. Milec (1996), 1996 CanLII 315 (ON CA), 110 C.C.C. (3d) 439 (O.C.A.) at pp. 444-5:

The reality of commercial life mandates that the line between acts directed to the preservation of the business, even if desperate, and acts which are fraudulent, be meticulously drawn.

[49]   I would set aside the conviction for fraud on count two.

Le fait d'espérer que des manipulations comptables n'entraînent aucune privation n'est aucun secours pour la personne qui les commet

R. v. Drabinsky, 2009 CanLII 12802 (ON SC)

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[472]       The question is whether the accused subjectively appreciated that certain consequences would follow from his act, not whether he believed they were moral:  “…the defrauder will not be acquitted because he believed what he was doing was honest.”[196]

[473]       The fact that the accused may have hoped deprivation would not occur or may have thought what he was doing was not wrong is no defense.  Where the accused knowingly undertook the acts in question aware that deprivation or risk of deprivation could follow, the accused is guilty.  This is so whether he actually intended the consequences or was reckless as to whether they would occur.  In other words a “sanguine belief that all will come out right in the end” is not a defense.   “Many frauds” are perpetrated by people who think there is nothing wrong with what they are doing or who think it will turn out alright in the end.[197] 

[474]       Mr. Drabinsky and Mr. Gottlieb may have thought the manipulations would be temporary. They may have thought there was nothing wrong with accounting practices they were directing. They may have thought it would all work out alright in the end. However:

 …this inquiry has nothing to do with the accused’s system of values. A person is not saved from conviction because he or she believes there is nothing wrong with what he or she is doing. The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral.[198]

 

[475]       It is essential that dishonest commercial practices which put the pecuniary interest of others at risk be visited with criminal sanctions.[199]

*** Confirmé par R. v. Drabinsky, 2011 ONCA 582, par. 80-82 ***

La fourchette de peines en matière de tentative de meurtre dans un contexte conjugal et celle applicable en matière de tentative de meurtre avec usage d'une arme à feu

Jean c. R., 2024 QCCA 1137

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[62]      La fourchette de peines en matière de tentative de meurtre dans un contexte conjugal a été décrite par le juge Doyon dans l’arrêt Roy[21] et confirmée récemment dans l’arrêt V.L.[22] : soit 1) des peines de plus courte durée (7 ans et moins); 2) les peines de durée intermédiaire (8 à 14 ans); et 3) les peines de plus longue durée (15 ans et plus). 

[63]      Pour les auteurs du Traité de droit criminel[23], il existerait une fourchette distincte visant les tentatives de meurtre non spécifiées qui se déclinent de la manière suivante : des peines de plus courte durée (7 ans et moins); des peines de durée intermédiaire (8 à 11 ans); des peines de plus longue durée (12 ans d’emprisonnement et plus).

[64]      L’utilité d’une telle fourchette distincte ne s’impose pas d’emblée et l’arrêt Roy donne un portrait utile qui n’exige pas d’être adapté ou modulé à l’égard des infractions de tentative de meurtre impliquant une arme à feu par opposition à celles commises en contexte conjugal. Les cas de figure les plus graves de tentative de meurtre appellent une peine supérieure à 15 ans[24], mais c’est l’ensemble des facteurs atténuants et aggravants qui permettront d’identifier une peine proportionnelle à la gravité de l’infraction et au degré de responsabilité du délinquant (art. 718.1 C.cr.).

[65]      En matière de tentative de meurtre avec armes à feu, la Cour a confirmé une peine de 16 ans dans Alexandre[25], de 19 ans dans Fuentes[26] et de 20 ans dans Hotte[27]. Dans l’arrêt Roy, la Cour est intervenue pour réduire une peine d’emprisonnement à perpétuité à 15 ans (moins la détention provisoire) en raison de l’absence de circonstances aggravantes la justifiant[28].

[66]      La Cour d’appel de l’Ontario applique une fourchette entre 6 ans et l’emprisonnement à perpétuité[29]. La Cour d’appel de la Nouvelle-Écosse évoque une fourchette de 10 ans, 16 ans et l’emprisonnement à perpétuité[30].

[67]      Les fourchettes de peines ne sont pas des codifications rigides. Elles « ne sont rien de plus que des condensés des peines minimales et maximales déjà infligées »[31], elles « ne devraient pas être considérées comme des “moyennes”, encore moins comme des carcans, mais plutôt comme des portraits historiques à l’usage des juges chargés de déterminer les peines »[32].