R. v. Leuenberger, 2014 BCCA 156 (CanLII)
[48] The actus reus of fraud is established by proving: (1) deceit, falsehood or other fraudulent means; and (2) deprivation caused by the prohibited act, whether actual loss or putting the victim’s pecuniary interests at risk: Théroux at 20. Thus, the first ground of appeal challenges the judge’s finding of fact that the Crown proved deprivation on the part of Kyah, an essential element of the actus reus of fraud.
[49] As to the first parts of the actus reus of fraud, falsehood has been defined as a deliberate lie, while deceit is established when an accused induces a person to believe something the deceiver knows is false: R. v. Stephenson, 2006 BCCA 25 (CanLII) at para. 102.
[50] As to “other fraudulent means”, it is not necessary an accused personally considers his or her means to be honest. Rather, whether the conduct amounts to fraudulent means is determined objectively, by reference to what a reasonable person would consider to be a dishonest act: R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29 at 45. The fact an accused used funds in a manner not authorized is sufficient grounds for finding he or she acted dishonestly: Zlatic at 44-47; R. v. Currie (1984), 5 O.A.C. 280 at para. 14.
[51] This Court, in R. v. Kingsbury, 2012 BCCA 462 (CanLII), summarized “deprivation”, the element at issue here, as follows:
[29] … In Théroux it was expressed in three ways: 1) that as a consequence of the prohibited act there be a deprivation of “the economic interests of the victim” (R. v. Olan, 1978 CanLII 9 (SCC), [1978] 2 S.C.R. 1175 as quoted in Théroux at 15); 2) that the prohibited consequence of the dishonest act is to deprive another of “what is or should be his”, which may consist of “merely placing another’s property at risk” (Théroux at 19); or 3) “[a possible] actual loss or the placing of the victim’s pecuniary interests at risk” caused by the dishonest act (Théroux at 20; see also in R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29 at 43).
[52] Ms. Leuenberger submits she committed no fraud, as fraud requires proof of deprivation by deceit. She relies on Théroux at para. 24 to argue, “[i]f there is a reasonable doubt as to whether the victim was deprived, the accused must be acquitted.”
[73] The mens rea of fraud is established by proving: (1) subjective knowledge of the prohibited act; and (2) subjective knowledge that the performance of the prohibited act could have as a consequence the deprivation of another. The Crown must prove the accused knowingly undertook the conduct that constitutes the dishonest act and subjectively appreciated that the consequences of such conduct could be deprivation: Théroux at 20.
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