The Offence of Fraud

THE OFFENCE OF FRAUD

Like virtually all offences, fraud consists of two main components, the prohibited act (actus reus) and the required state of mind (mens rea).

MENS REA

The mental element of fraud consists of two states of mind:

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).

R. v. Théroux, [1993] 2 S.C.R. 5 at p. 20; R. v. Zlatic, [1993] 2 S.C.R. 29 at p. 43.

The question is not whether the accused believed the acts or their consequences to be moral.  A defrauder will not be acquitted because he or she believed that what they were doing was honest. Mens rea for fraud consists of the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. 

R. v. Théroux, [1993] 2 S.C.R. 5.

This applies as much to the third head of fraud, “other fraudulent means”, as to lies and acts of deceit.

R. v. Théroux, [1993] 2 S.C.R. 5 at para 25, 26.

Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.

R. v. Théroux, [1993] 2 S.C.R. 5 at para 28

ACTUS REUS

The actus reus has two aspects:

1.  an act of deceit, a falsehood or some other fraudulent means; and

2.  deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.

R. v. Théroux, [1993] 2 S.C.R. 5, at p. 20;

R. v. Zlatic, [1993] 2 S.C.R. 29, at p. 43.

So, in short, the actus reus of fraud consists of dishonest conduct that results in at least a risk of deprivation to the victim.

Conduct which constitutes “other fraudulent means”

The term “other fraudulent means” include means which are not in the nature of a falsehood or a deceit and encompass “all other means which can properly be stigmatized as dishonest.”

R. v. Olan, [1978] 2 S.C.R. 1175, at p. 1180.

This category is determined objectively, by reference to what a reasonable person would consider to be dishonest.

The category of "other fraudulent means" has been used to support convictions in a number of situations where deceit or falsehood cannot be shown.  These situations include, among other things, the use of corporate funds for personal purposes, non‑disclosure of important facts, exploiting the weakness of another, unauthorized diversion of funds, and unauthorized arrogation of funds or property.

R. v. Black and Whiteside (1983), 5 C.C.C. (3d) 313 (Ont. C.A.); R. v. Shaw (1983), 4 C.C.C. (3d) 348 (N.B.C.A.);  R. v. Wagman (1981), 60 C.C.C. (2d) 23 (Ont. C.A.); R. v. Rosen (1979), 55 C.C.C. (2d) 342 (Ont. Co. Ct.), R. v. Côté and Vézina (No. 2) (1982), 3 C.C.C. (3d) 557 (Que. C.A.); R. v. Hansen (1983), 1983 ABCA 68 (CanLII), 25 Alta. L.R. (2d) 193 (C.A.); R. v. Geddes (1979), 52 C.C.C. (2d) 230 (Man. C.A.); R. v. Currie; R. v. Bruce (1984), 5 O.A.C. 280, and R. v. Kirkwood (1983), 1983 CanLII 1953 (ON CA), 42 O.R. (2d) 65 (C.A.).

In the highly-regulated setting of horse racing, for instance, which prohibits the use of certain performance enhancing drugs and prohibits trainers from possessing loaded syringes at the racetrack, a horse trainer’s possession at the racetrack of a syringe loaded with a prohibited drug can “properly be stigmatized as dishonest”.

R. v. Riesberry, 2015 SCC 65, [2015] 3 S.C.R. 1167 at para 25.

Establishing the causal connection between the fraudulent act and the risk of deprivation

What is required in all cases is proof that there is a sufficient causal connection between the fraudulent act and the victim’s risk of deprivation. In some cases, this causal link may be established by showing that the victim of the fraud acted to his or her detriment as a result of relying on or being induced to act by the accused’s fraudulent conduct. But this is not the only way the causal link may be established.

It is sufficient that the accused’s conduct created a risk that one would be deprived dishonestly of something which, but for the dishonest act, one might have obtained.

R. v. Riesberry, 2015 SCC 65, [2015] 3 S.C.R. 1167 at para 25, 26.

Fraud consists of being dishonest for the purpose of obtaining an advantage and which results in prejudice or a risk of prejudice to someone’s “property, money or valuable security”. There is no need to target a victim and the victim may not be ascertained.

Vézina and Côté v. The Queen, [1986] 1 S.C.R. 2 at 19.

The defrauder’s intention to repay is irrelevant if the conduct of the accused is otherwise shown to involve dishonest deprivation for personal ends. An intention to repay might, at most, be relevant at sentencing.

R. v. Olan, [1978] 2 S.C.R. 1175.