R. v. Kingsbury, 2012 BCCA 462 (CanLII)
[36] In R. v. Dumont, [1968] 1 C.C.C. 360 (Que. C.A.), the accused, as a reward for aiding a government employee, was directed to fill out and submit a fictitious invoice for work he did not perform. Justice Rinfret for the Quebec Court of Appeal discussed the mens rea at 362, arguably recognizing the relevance of subjective knowledge of entitlement:
(Translation) I have already spoken of the intent to defraud (s. 323 uses the word “frustrer”) and I repeat that Mr. Dumont certainly knew that he had no valid claim against the Government, that he was not legally entitled to any remuneration, that the account produced and signed by him was fictitious, and that the debt owing to him was non-existent; he knowingly took this devious route, assisted by a departmental employee, to obtain an asset to which he could not have made any legal claim.
[Emphasis added.]
[37] In R. v. Mercer (1998), 1998 CanLII 18029 (NL CA), 160 Nfld. & P.E.I.R. 174 (Nfld. C.A.), Ms. Mercer was convicted of defrauding the government of two social security cheques she received and cashed during her first month of employment as a teacher.
[38] On appeal, the argument was that the trial judge’s conclusion that she had the requisite mens rea was unreasonable and unsupported by the evidence. Justice Green, for the Newfoundland Court of Appeal, rejected that argument and concluded at paras. 31-32:
[31] Even if the trial judge had accepted, at face value, the appellant’s assertion that she felt that she was doing nothing wrong, that, in itself, would not have amounted to a defence to this charge. As previously indicated, a subjective intention to act dishonestly or a subjective appreciation of the dishonest nature of the act is not a requirement of establishing the mens rea of fraud.
[32] Having represented that she had not obtained any income from employment in the previous twelve months, having committed herself in writing to report any changes in her financial circumstances to the authorities and having acknowledged in her evidence that she knew that she had an obligation to report any income, it is clear that she had the requisite knowledge of the prohibited act and of the consequence that the Department would be induced to continue to give her assistance and thereby be deprived of money in circumstances where she was not entitled to it. Having put herself in a position where she received social assistance benefits after the beginning of September in the circumstances of her knowledge of the previous representations which she made and their consequences, it cannot be said that she did not know that she was not entitled to the money or that she did not have to return it. In Théroux, the following comment of Taggart, J.A. in R. v. Long (1990), 1990 CanLII 5405 (BC CA), 61 C.C.C. (3d) 156 (BCCA)was approved:
... the mental element of the offence of fraud must not be based on what the accused thought about the honesty or otherwise of his conduct and its consequences. Rather it must be based on what the accused knew were the facts of the transaction, the circumstances in which it was undertaken and what the consequences might be of carrying it to a conclusion.
Here, the appellant knew the facts of the transaction, the circumstances in which it was undertaken and what the consequences would be.
[Emphasis added.]
[39] In Mercer, the trial judge rejected the assertion that the accused honestly believed she was entitled to the money. The appellant’s argument posits that if the trial judge found as a fact that Ms. Mercer had an honest belief she was entitled to the money, the mens rea for fraud would not have been made out. This is because Ms. Mercer would have had no subjective knowledge that she had deprived the government of something to which it was entitled, as she believed she was entitled to the money. Such a belief should be distinguished, the appellant argues, from Ms. Mercer’s belief that she felt that she was doing nothing wrong, which is not relevant to the mens rea of fraud post-Théroux
[48] It follows that I respectfully agree with the analysis of Professor Nightingale in The Law of Fraud and Related Offences (Scarborough: Carswell, 1996) at ch. 10-14:
It is submitted that with respect to the consequence of deprivation, while an accused must either desire it or foresee it is a consequence of his or her conduct, and while this must be assessed subjectively, the accused’s opinion or belief that the consequences do not amount to a deprivation or a detriment is not relevant. What an accused must desire or foresee is the fact or set of facts which constitute what is characterized as deprivation. It is not necessary that an accused appreciate that the facts desired or foreseen occurring will constitute a deprivation in law. Therefore, as with intent in relation to the circumstances of dishonesty, so long as there is knowledge of the facts which constitute the requisite elements of the actus reus, the accused’s opinion based upon an assessment of those facts is not a relevant consideration to the finding of intent.
For example, in Olan, to establish intent with respect to the consequences, it was sufficient to establish that the accused knew or could foresee that the corporation would part with its liquid assets in return for other less valuable assets. It was not necessary for the accused to perceive or believe that this transaction was detrimental to the corporation or constituted deprivation in law.
Therefore, fraudulent intent in relation to the consequence element of the actus reus of the offence can be defined as desire or foresight as to the facts found in law to constitute deprivation, “detriment,” “prejudice” or “risk of prejudice” to the economic interests of the victim.
[49] It is important to note that this analysis is consistent with the principle enshrined in s. 19 of the Code that a mistake of law is not a defence. It is also consistent with the principle that an honest but mistaken belief in a fact (or of mixed fact and law) that if true would mean that there had been no deprivation will negate fraudulent intent with respect to the consequences of a prohibited act. (See the helpful discussion of these issues in Nightingale, ch. 11.)
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