Une intention subjective de « tromper » n’est pas un élément essentiel de l’infraction de fraude, ce qui implique que la Couronne n’a pas à prouver une intention malicieuse, malveillante ou de nuire chez l’accusé

R. v. Earle, 2021 ONCA 34

Lien vers la décision

[50]      This argument rests on an erroneous understanding of the mental element for fraud under s. 380 of the Criminal Code: that the Crown must prove that the appellant subjectively appreciated the dishonesty of his acts. This understanding of the mental element is precisely what the Supreme Court rejected in R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29, at p. 49:

As is pointed out in Théroux [R. v. Theroux 1993 CanLII 134 (SCC), [1993] 2 SCR 5], released concurrently, fraud by “other fraudulent means” 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. [Emphasis added.]

This accused knew precisely what he was doing and knew that it would have the consequence of putting his creditors’ pecuniary interests at risk.

[51]      The point is stated succinctly in R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, 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.