R. v Atwal, 2015 ONSC 4425
[91] In R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, at pp. 15-17, the court stated:
Since the mens rea of an offence is related to its actus reus, it is helpful to begin the analysis by considering the actus reus of the offence of fraud. Speaking of the actus reus of this offence, Dickson J. (as he then was) set out the following principles in Olan [1978 CanLII 9 (SCC), [1978] 2 S.C.R. 1175]:
(i) the offence has two elements: dishonest act and deprivation;
(ii) the dishonest act is established by proof of deceit, falsehood or "other fraudulent means";
(iii) the element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act.
Olan marked a broadening of the law of fraud in two respects. First, it overruled previous authority which suggested that deceit was an essential element of the offence. Instead, it posited the general concept of dishonesty, which might manifest itself in deceit, falsehood or some other form of dishonesty. Just as what constitutes a lie or a deceitful act for the purpose of the actus reus is judged on the objective facts, so the "other fraudulent means" in the third category is determined objectively, by reference to what a reasonable person would consider to be a dishonest act. Second, Olan made it clear that economic loss was not essential to the offence; the imperilling of an economic interest is sufficient even though no actual loss has been suffered. By adopting an expansive interpretation of the offence, the Court established fraud as an offence of general scope capable of encompassing a wide range of dishonest commercial dealings.
Subsequent cases followed Olan's lead, fleshing out the elements of the offence set out in Olan in a broad and purposive manner. One of the first questions which arose was whether the third type of dishonest conduct, "other fraudulent means", was a super-added element which the Crown must prove in addition to proving either deceit or falsehood. This was rejected in R. v. Doren (1982), 1982 CanLII 2197 (ON CA), 36 O.R. (2d) 114 (C.A.); see also R. v. Kirkwood (1983), 1983 CanLII 1953 (ON CA), 42 O.R. (2d) 65 (C.A.). In a number of subsequent cases, courts have defined the sort of conduct which may fall under this third category of other fraudulent means to include the use of corporate funds for personal purposes, non-disclosure of important facts, exploiting the weakness of another, unauthorized diversion of funds, and unauthorized arrogation of funds or property... As noted above, where it is alleged that the actus reus of a particular fraud is "other fraudulent means", the existence of such means will be determined by what reasonable people consider to be dishonest dealing.
See also R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29, at pp. 43-46; R. v. Drabinsky, 2011 ONCA 582, at paras. 81-82 (leave to appeal refused [2011] S.C.C.A. No. 491).
[92] “Dishonesty is not a technical term, it is what a reasonable person would consider to be a dishonest act”: R. v. Ruhland (1998), 1998 CanLII 6138 (ON CA), 123 C.C.C. (3d) 262 (Ont. C.A.), at para. 11. In Zlatic, at pp. 45-6, the court observed that “[t]he dishonesty of “other fraudulent means” has, at its heart, the wrongful use of something in which another person has an interest, in such a manner that this other’s interest is…put at risk” which may include “unauthorized diversion of funds”. “Where it is alleged that a corporation has been defrauded by its directors, deception of the corporation is not an essential element of the offence”: R. v. Olan, 1978 CanLII 9 (SCC), [1978] 2 S.C.R. 1175, at p. 1180.
[93] A limited company is a separate legal entity from its owner: Shoppers Drug Mart Inc. v. 6470360 Canada Inc. [647], 2014 ONCA 85, at para. 23, leave to appeal refused [2014] S.C.C.A. No. 119 (“Although the sole shareholder, officer and director of 647, Beamish did not share a legal personality with the corporation”). As noted in Zlatic, at p. 48, “the diversion of corporate funds to private purposes having nothing to do with the business” can amount to fraud. In R. v. Pierce (1997), 1997 CanLII 3020 (ON CA), 32 O.R. (3d) 321 (C.A.), at pp. 327-8, the court held:
On the evidence, the funds embezzled belonged to Garfield’s, whatever their source. Accordingly, the funds could not be segregated from Garfield’s earnings and designated as foreign moneys infused into the company in the form of capital for a fresh venture.
On this analysis, we do not reach the point of considering whether the appellant received instructions to divert the funds from the company treasury. Even if she was acting on the instructions of one of the principals of Garfield’s parent company, this would mean only that she had an accomplice in her fraudulent scheme. As Locke J. noted, Garfield’s was a separate legal entity from its shareholder, Premier International.
[94] In R. v. Must, 2011 ONCA 390, at para. 3, the court stated:
The mens rea for fraud has been authoritatively determined in R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5 at para. 24:
Having ventured these general comments on mens rea, I return to the offence of fraud. The prohibited act is deceit, falsehood, or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may, as we have seen, consist in merely placing another's property at risk. The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete. The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence. To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence (see Williams, supra, c. 3), the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation). The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence. [Emphasis added by Ont. C.A.]
See also Zlatic, at pp. 49-50; R. v. Eizenga, 2011 ONCA 113, at para. 64.
Forgery
[95] A person commits forgery who makes a false document, knowing it to be false, with intent that it should in any way be used or acted upon as genuine, to the prejudice of another: s. 366 Criminal Code; R. v. Hawrish (1986), 1986 CanLII 3208 (SK CA), 32 C.C.C. (3d) 446 (Sask. C.A.), at pp. 450-454. A document is “false” where a “material part…purports to be made by or on behalf of a person…who did not make it or authorize it to be made”: s. 321 of the Code; R. v. Nousci (1991), 1991 CanLII 7238 (ON CA), 69 C.C.C. (3d) 64 (Ont. C.A.), at paras. 16-49 (leave to appeal refused [1992] S.C.C.A. 69). A person who uses or utters a forged document, knowing or believing that the document is forged, commits an offence contrary to s. 368 of the Code. While the crime requires an intent to deceive, it does not require an intent to defraud or to cause prejudice: R. v. Valois, 1986 CanLII 55 (SCC), [1986] 1 S.C.R. 278, at pp. 282-3; R. v. Sebo (1988), 1988 ABCA 200 (CanLII), 42 C.C.C. (3d) 536 (Alta. C.A.), at p. 540 (leave to appeal refused [1988] S.C.C.A. No. 309).
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