Résumé des règles applicables à l'insouciance et l'aveuglement volontaire dans le contexte de la fraude

R v Fast, 2014 SKQB 84

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[257]               Further considerations are appropriate in this case. To establish mens rea, wilful blindness and/or recklessness can exist in relation to either or both the conduct or consequences of the actus reus of the offence.

[258]               In The Law of Fraud and Related Offences, supra, at pages 11‑8.6 to 11‑9, a useful summary of the use of wilful blindness and recklessness in relation to fraud is provided:

1)   Fraudulent intent can be established upon proof that the accused was reckless or wilfully blind with respect to either or both of the conduct and consequence elements of the actus reus of fraud;

2)   An accused is reckless with respect to the conduct element of the actus reus of fraud when he or she is knowingly careless with respect to the facts upon which deceit, falsehood, or other fraudulent means are found. The accused is aware that there is a risk that such conduct may be prohibited, but nevertheless persists in spite of the risk;

3)   An accused is reckless with respect to the consequence element of the actus reus of fraud when he or she is knowingly careless with respect to the occurrence of the consequence of deprivation. The accused is aware that there is a risk that such conduct may bring about the prohibited consequence, but nevertheless persists in spite of the risk;

4)   An accused is wilfully blind with respect to the conduct element of the actus reus of fraud when he or she is aware that certain facts exist which would make such conduct a deceit, a falsehood, or other fraudulent means, but deliberately refrains from making inquiries so as to remain ignorant;

5)   An accused is wilfully blind with respect to the consequence element of the actus reus of fraud when he or she is aware that certain facts exist giving rise to a belief that the prohibited consequences will flow from such conduct, but deliberately refrains from making inquiries so as to remain ignorant.

 

[259]               In the recent decision of R. v. Parkes, 2012 SKQB 164, 396 Sask.R. 201, Acton J. considered the concept of wilful blindness in the context of fraud. The matter involved an accused who had deposited rent cheques from an elderly resident of her care home even though Veterans Affairs paid for the expenses in full each month. Acton J. found that if she did not know that Veterans Affairs was paying her client’s expenses, she would have been wilfully blind or reckless of that fact because monthly invoices were sent to Veterans Affairs from her care home: see paragraph 29.

[260]               In R. v. Pchajek, 2009 MBQB 265, [2010] 5 W.W.R. 341, the accused was charged with both fraud and theft. She paid for personal items out of her employer’s petty cash. She admitted to taking the funds but denied having intended to steal from or defraud her employer. Evidence at trial showed that she regularly intermingled her personal money with the petty cash account but did not keep track of same. As a result of this and other conduct, the court found that the actus reus of the offence had been established (dishonest conduct giving rise to a deprivation).

[261]               In determining the mens rea of the conduct element, the court found that she was both reckless and wilfully blind. The accused argued that she did not have subjective knowledge that her spending exceeded the personal funds she had deposited into the petty cash, and thus, she did not have the requisite mens rea. The court found that she was wilfully blind to this fact. The court also determined that she was reckless in failing to take any steps in trying to reconcile her personal funds and the petty cash funds.

[262]               The court also found that the accused was wilfully blind with respect to mens rea in relation to the consequence element of the actus reus. The court held that even if the accused was not subjectively aware of the amount she owed to the petty cash, the failure to have this knowledge was solely because she chose not to investigate the amount of money she owed.

[263]               The court has reviewed other cases involving these concepts, including: R. v. Hucal, 2001 ABQB 606, 291 A.R. 1 (in the absence of actual knowledge, the court has the ability to convict the accused on the basis of wilful blindness); R. v. Poonai (2003), 2003 CanLII 87744 (ON CJ), 175 C.C.C. (3d) 8, [2003] O.J. No. 1927 (QL) (wilful blindness is sufficient to satisfy knowledge), and R. v. Ellis, 2007 ABQB 722, 426 A.R. 1 (guilt on a charge of fraud can also be proven on the basis of wilful blindness).