L'analyse de la privation par la Cour suprême de Colombie-Britannique au sujet de l'infraction de fraude

R. v. Wilson, 2003 BCSC 99 (CanLII)

[22] Deprivation need not be actual loss. It is sufficient if there is a potential for loss, that is that it imperils the economic interest of the person towards whom the accused has acted in a dishonest manner. Some of the leading cases on this issue are R. v. Olan, Hudson and Hartnett (1978), 41 C.C.C. (2d) 145 (S.C.C.); R. v. Théroux reflex, (1993), 79 C.C.C. (3d) 449 (S.C.C.) at pp.456-7; R. v. Knelson and Baran (1962), 133 C.C.C. 210 (B.C.C.A.); R. v. Wagman reflex, (1981), 60 C.C.C. (2d) 23 (Ont.C.A.) at pp.29-30. In Olan Dickson J., as he then was, giving the judgment for the court, stated at pp.150-1:

Courts, for good reason, have been loath to attempt anything in the nature of an exhaustive definition of "defraud" but one may safely say, upon the authorities, that two elements are essential, "dishonesty" and "deprivation". To succeed, the Crown must establish dishonest deprivation.

[23] 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. The following passages from the English Court of Appeal judgment in R. v. Allsop (1976), 64 Cr. App.R. 29, in my view correctly state the law on the role of economic loss in fraud, pp.31-2:

Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to that purpose and incidental. It is "intended" only in the sense that it is a contemplated outcome of the fraud that is perpetrated. If the deceit which is employed imperils the economic interest of the person deceived, this sufficient to constitute fraud even though in the event no actual loss is suffered and notwithstanding that the deceiver did not desire to bring about an actual loss.

We see nothing in Lord Diplock's speech [in Scott] [sic: [1975] A.C. 819] to suggest a different view. "Economic loss" may be ephemeral and not lasting, or potential and not actual; but even a threat of financial prejudice while it exists it may be measured in terms of money.

Interests which are imperilled are less valuable in terms of money than those same interests when they are secure and protected. Where a person intends by deceit to induce a course of conduct in another which puts that other's economic interests in jeopardy he is guilty of fraud even though he does not intend or desire that actual loss should ultimately be suffered by that other in this context.

[24] There must be a clear causal link between the use of fraudulent means and the deprivation: R. v. Émond, supra.