Une insouciance ou un aveuglement volontaire à répétition qui sont flagrants est suffisant pour qu'il y ait condamnation pour fraude

R. v. Wolsey, 2008 BCCA 159

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[22]           The trial judge did not follow the majority opinion in Théroux and Zlatic that the actus reus is to be determined entirely on the objective facts.  This was an error in law.

(iii) Wilful Blindness or Recklessness

[28]           The Crown alleges that the trial judge failed to consider whether wilful blindness or recklessness applied to the mens rea of fraud.  Wilful blindness is the equivalent of actual knowledge.  It arises where an accused “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge” of the facts rendering his conduct culpable: R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55 at para.103, 129 D.L.R. (4th) 510.  Recklessness “is found in the attitude of [an accused] who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk”: Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570 at para.16, 17 D.L.R. (4th) 577.

[29]           The Crown relies on Taggart J.A.’s obiter remark in Long, supra, that the concepts of wilful blindness and recklessness can be used to establish the mens rea of fraud; Taggart J.A. wrote at 166:

[A]pplying the standards of the average person acting reasonably in similar circumstances it might be decided the conduct of the accused was dishonest.  But it may be that the accused did not have knowledge of some matters which, when taken together with other conduct, leads to the conclusion the conduct was dishonest.  The lack of knowledge of some matters by the accused may lead to the conclusion the accused did not have the intention required to be present in association with dishonest conduct in order that fraud may exist.  In this connection the concepts of recklessness and wilful blindness may have important roles to play.

[30]           Counsel for Mr. Wolsey submits that Théroux took a narrower view of the use that could be made of recklessness to establish the mens rea of fraud.  While recklessness will satisfy the mens rea requirement in relation to deprivation, only knowledge (including wilful blindness) will satisfy the mens rea requirement relating to dishonesty.  This submission is based on the comment of McLachlin J. in Théroux that recklessness as to consequences might also attract criminal responsibility as she wrote at 20:

I have spoken of knowledge of the consequences of the fraudulent act.  There appears to be no reason, however, why recklessness as to consequences might not also attract criminal responsibility.  Recklessness presupposes knowledge of the likelihood of the prohibited consequences.  It is established when it is shown that the accused, with such knowledge, commits acts which may bring about these prohibited consequences, while being reckless as to whether or not they ensue.

[31]           I do not agree with the respondent’s submission that Théroux restricts the concept of recklessness to the deprivation element of the mens rea of fraud.  She was not addressing specifically the question of whether recklessness could apply to the mens rea requirement relating to the dishonest conduct itself.  When this passage from Théroux is taken in the context of her earlier comment, that “[t]ypically, mens rea is concerned with the consequences of the prohibited actus reus”, it seems likely her remarks regarding recklessness were directed more broadly at the entire concept of the mens rea required to prove fraud.  I also disagree with the respondent’s submission that the Supreme Court of Canada’s desire to avoid criminalizing conduct that is better left to civil sanction provides a logical basis for restricting the concept of recklessness to the mens rea of deprivation only.