R. v. Pearson, 2010 ABQB 727
[12] It is apparent that there is no room in the definition of fraud for mistake of fact: R. v. Wolsey (2008), 2008 BCCA 159 (CanLII), 233 C.C.C. (3d) 205 B.C.C.A. Therefore, it would not avail the accused in this case if he said he honestly believed that the bank would cover the cheques he wrote despite the lack of funds because they had done so on virtually every occasion in the past. The actus reus is complete upon the accused voluntarily writing a cheque on an account without funds. That is a falsehood (false representation as to the existence of funds). The issue that remains however, with respect to the actus reus is whether there was in fact insufficient funds at the time the cheques were written. In my view, there were sufficient funds. The accounts involved were regularly and routinely funded by the bank’s allowance of an overdraft. There were but two criteria relevant to that extension of credit: that any overdraft would be covered by noon on the day it occurred and interest was chargeable on all overdrafts at the rate of 21% per annum. Far from prohibiting the use of overdraft, Ms. Sun actually sanctioned the practice as it was plainly and regularly occurring and she would have had reports of that fact in relation to both accounts virtually every day from October 1997 until February 1999 when she no longer had responsibility for the accounts. In effect, there were funds pre-authorized in each of the accounts subject to the bank’s discretion. Therefore, the representation by the Defendant, that by writing and depositing a cheque, there were funds in the account to cover the cheque, was accurate. Plainly the representation could prove to be false by noon the next day, but in my view, after all, the bank could, as it had in the past, simply do nothing. The actus reus requires falsity independent of unpredictable third party intervention.
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