Le critère d'analyse de ce qu'est la personne raisonnable dans l'appréciation à savoir si un acte malhonnête est susceptible de sanction criminelle

R. v. Faulkner, 2022 ONSC 3074

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[24]            As previously stated, the Crown relies on “other fraudulent means” to prove the fraud allegation in Count. The applicable test for proof of “other fraudulent means” is set out by the Supreme Court of Canada (SCC) in R. v. Theroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, 79 C.C.C. (3d) 449.

Actus Reus

 

Relying on the test established in R. v. Olan, 1978 CanLII 9 (SCC), [1978] 2 S.C.R. 1175, the Supreme Court of Canada held in Theroux that the actus reus of the offence is established by proof of two elements: (1) a dishonest act; and (2) deprivation.

 

(1) Dishonest act

The dishonest act is established by proof of (1) deceit, (2) falsehood or (3) other fraudulent means. The third category of “other fraudulent means” will be determined objectively by “what reasonable people consider to be dishonest dealing”: Theoreux at pp. 16-17. “Other fraudulent means” is a term that covers more ground than either deceit or falsehood. It includes any other means, which are not deceit or falsehood, properly regarded as dishonest according to the standards of reasonable people. Dishonesty with respect to the actus reus is to be measured against the objective standard of what a reasonable person would consider to be dishonest without regard for what the accused actually knew: R. v. Wolsey, 2008 BCCA 159, 233 C.C.C. (3d) 205, at para. 15. In instances under the fraud by deceit or falsehood category, “…all that need be determined is whether the accused, as a matter of fact, represented that a situation was of a certain character, when, in reality, it was not”: Theoreux, at p.17.

 

(2) Deprivation

Deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act. The Court in Theoreux also found 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”: Theoreux, at p. 16.

 

Mens Rea

 

The mens rea of the offence is based on a subjective standard. It is comprised of two elements: (1) subjective knowledge of the prohibited act; and (2) subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim's pecuniary interests are put at risk): Theoreux, at p. 20. When considering the element of intent in fraud, the principal concern is to determine what knowledge an accused had of the conduct which has been found to be dishonest, and what knowledge or foresight he had of the consequences which amount to the deprivation alleged: R. v. Long, 61 C.C.C. (3d) 156, 1990 CanLII 5405 (BC CA), at para. 35.

 

This proposition has been upheld by the Court of Appeal for Ontario (ONCA) in R. v. Earle, 2021 ONCA 34 at paras. 50-51 when they recited the following as the mens rea of the offence:

…where the court stated “fraud by “other fraudulent means” [as alleged in the present matter] does not require that the accused subjectively appreciate the dishonesty of his or her acts. The accused must knowingly, i.e., subjectively, undertake the conduct which constitutes the dishonest act, and must subjectively appreciate that the consequences of such conduct could be deprivation, in the sense of causing another to lose his or her pecuniary interest in certain property or in placing that interest at risk. 

 

This same point was also held in R. v. Eizenga, 2011 ONCA 113, at para. 81:

[A] subjective intent to mislead is not an essential element of the offence of fraud. Instead, all that is required is subjective knowledge of the prohibited act, and that the act could have as a consequence the deprivation of another

 

THE INTERPRETATION OF “REASONABLE PERSON”

 

[25]            Although the standard of a reasonable person may vary depending on the charge one is facing, a common theme emerges where the analysis, of the “reasonable person”, reveals some basic characteristics that they possess. A reasonable person is one who is “reasonable, informed, practical and realistic”, someone who “considers the matter in some detail” and is “dispassionate and fully apprised of the circumstances of the case”: see R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer J.

[26]           In the context of fraud charges, conduct that would lead a reasonable person to conclude the conduct is deceitful or dishonest includes:

• Silence or omission as such that would mislead a “reasonable person”: R. c. E. (J.) (1997), 1997 CanLII 10605 (QC CA), 117 C.C.C. (3d) 275 (C.A. Que.), at paragraphs 29-3;
• Where a reasonable person would find the defendant’s conduct to be deceitful. Examples of other fraudulent means include exploiting weaknesses of victims, personal use of corporate money and unauthorized diversion of funds: R. v. Drakes, 2006 CanLII 730 (ON SC), 2006 CarswellOnt 1585, [2006] O.J. No. 129, [2006] O.T.C. 24, [2006] C.C.S. No. 3920 (WL), and;
• Conduct which reasonable decent persons would consider dishonest and unscrupulous: R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29, 79 C.C.C. (3d) 466

 

[27]           With this information in mind, questions to consider are:

•         Would the reasonable person stigmatize what was done as dishonest?: R v Iyer, 2020 ABCA 439;

•         Would ordinary, decent people feel this conduct is discreditable as being clearly at odds with straightforward or honourable dealings?: R. v. Olan, 1978 CanLII 9 (SCC), [1978] 2 S.C.R. 1175;