R v Iyer, 2020 ABCA 439
[46] “The element of deprivation is satisfied on proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim. It is not essential that there be actual economic loss as the outcome of the fraud”: Olan at 1182. Deprivation can also exist where an opportunity to prevent loss is taken away: see R v Gaetz, 1992 CanLII 2509 (NS CA), 77 CCC (3d) 445, affirmed 1993 CanLII 82 (SCC), [1993] 3 SCR 645, 84 CCC (3d) 351; or, where an opportunity to profit is extinguished: see R v Kirkwood, 1983 CanLII 1953 (ON CA), 148 DLR (3d) 323.
[47] Mr Iyer submits that the jurisprudence does not go so far as to recognize that the victims in this case were deprived of a pecuniary interest sufficient to satisfy a conviction for fraud by “other fraudulent means.”
[48] In many cases of fraud, particularly those which deal with the misuse of corporate assets, the victims are creditors, shareholders or the corporation itself. Zlatic is an example of fraud on creditors, as are R v Geddes, 1979 CanLII 2854 (MB CA), 52 CCC (2d) 230 and Gaetz. Olan is an example of fraud on the corporation and its shareholders; see also R v Ruhland, 1998 CanLII 6138 (ON CA), 123 CCC (3d) 262.
[49] We do not find the jurisprudence as restrictive as Mr Iyer suggests. Indeed, courts have generously interpreted “deprivation” since Olan.
[50] In R v Currie; R v Bruce (1984), 5 OAC 280 (CA), [1984] OJ No 147 (QL), the accused solicited investments in a factoring scheme where he was to purchase the accounts receivable of a company known as Water-Eze Products Ltd. (Water-Eze) at a 5% discount. Funds specifically invested for the Water-Eze factoring scheme were actually invested in a company known as Aerobec and were eventually lost. The trial judge instructed the jury that the dishonest act need only be a cause of deprivation, not the exclusive cause of deprivation. A jury convicted the accused of fraud and the Court of Appeal found no error in the jury direction.
[51] In R v Riesberry, 2015 SCC 65, the accused was a licensed trainer of Standardbred horses. At a horse race, he was caught on camera drugging one horse, and caught trying to sneak syringes with drugs into the track for the purpose of doing the same thing to another horse. Speaking to deprivation, the Court found that this conduct caused a risk of deprivation to the betting public and held at para 25:
...it created the risk of betting on a horse that, but for Mr. Riesberry’s dishonest acts, might have won and led to a payout to the persons betting on that horse…Mr. Riesberry’s dishonest conduct created a risk that bettors would be deprived dishonestly of something which, but for the dishonest act, they might have obtained.
[52] In R v Di Giuseppe, 2010 ONCA 91, through the control of three corporations, the accused caused these companies to fail to report taxable income and supplies. While no income tax returns were filed, the accused’s dishonest acts in creating false records, destroying records, and in deliberately failing to file returns made it impossible for the corporations to comply with their legal duty to file income tax returns. This caused a deprivation by placing public economic interest at risk through intentionally directing the diversion of revenue for the purposes of undervaluing the taxable income of the accused’s corporations.
[53] The breadth of cases in which a deprivation has been found speaks to the flexibility with which courts have interpreted the idea of deprivation in the context of fraud. In Gaetz, the Court cited with approval Ewart on Criminal Fraud (1986) at p. 121:
As a group, all of the cases reviewed in this part demonstrate the current reach of the law of fraud. They show that the term "prejudice to economic interests", which became part of the law of fraud as a result of the Olan decision, is to be given a generous interpretation. If the victim of an alleged fraud is denied the opportunity to make a profit, or denied the opportunity to prevent a loss, deprivation exists. Neither the profit nor the loss need be certain nor quantifiable. Regardless of whether the case involves a breach of copyright, interference with a gaming event, use of an employer's facilities for personal gain, or the sabotage of a loss-prevention system, the law of fraud provides a response. [emphasis added]
[54] A similar approach to the interpretation of “deprivation” was supported by the majority in Zlatic at 48-49:
The fact that the appellant had legal title to the monies he gambled away does not alter the result. Fraud looks to the substance of the matter. The authorities make it clear that it is unnecessary for a defrauding party to profit from his or her fraud in order to be convicted; it is equally unnecessary that the victims of a fraud suffer actual pecuniary loss in order that the offence be made out [citations omitted]. What is essential is not the formalities of profit or actual pecuniary loss, but that dishonest commercial practices which subject the pecuniary interest of others to deprivation or the risk of deprivation be visited with the criminal sanction. It follows that the fact that the defrauder may have legal title to the property affords no defence; it is not his title, but how he has obtained it and what he does with it that is important. [emphasis added]
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