La fraude ne s'étend pas à la personne incompétente ou stupide

R. v. Fast, 2018 ONSC 2821

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[52]           First, the Crown must prove beyond a reasonable doubt that the accused had subjective knowledge or awareness of the prohibited dishonest act; i.e., that he or she meant to say and/or do those things which amount to deceit, falsehood or other fraudulent means.  In other words, the Crown must prove beyond a reasonable doubt that the accused deliberately or knowingly engaged in or undertook the conduct which constituted such dishonest acts.  In that regard, as emphasized by the Supreme Court of Canada:

•        It must be remembered that the requirement of intentional fraudulent action excludes mere negligent misrepresentation.  It also excludes improvident/unwise business conduct, or conduct which is sharp in the sense of taking advantage of a business opportunity to the detriment of someone less astute.

•        The accused must intentionally deceive, lie or commit some other fraudulent act for the offence to be established.  Neither a negligent misstatement nor a sharp business practice will suffice, because in neither case will the required intent to deprive by fraudulent means be present.  A statement made carelessly, even if it is untrue, will not amount to an intentional falsehood, subjectively appreciated.  Nor will any seizing of a business opportunity, which is not motivated by a person’s subjective intent to deprive by cheating or misleading others, amount to an instance of fraud.

•        In short, the focus of criminal fraud is restricted to deliberately practised dishonest acts. 

•        As noted in R. v. Egmond, supra, at paragraph 53, criminal fraud does not extend to cases of person acting in error, out of stupidity, by inadvertence, or incompetence.  Similarly, as emphasized in R. v. Milec, [1996] O.J. No. 3437 (C.A.), at paragraph 16, a meticulous line must be drawn between cases where a person was “scrambling” and resorting to desperate measures in an effort to save and preserve a crumbling business owing to the realities of commercial life, and cases where a person knows that he or she was acting fraudulently in the course of doing so.