La défense d’apparence de droit n’est pas recevable en matière de fraude
R v Suzi, 2018 ABPC 130
[27] The mens rea of the offence of fraud has been explained in the following terms.The mens rea would then consist in 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. If this is shown, the crime is complete … the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation): Theroux at 19.
[28] The issue of self-help, or colour of right, in relation to the offence of fraud was first addressed in brief by Justice McLachlin in Theroux where she stated: “The fact that the accused … may have felt there was nothing wrong with what he or she was doing, provides no defence.” at page 19. [29] This topic was again commented upon briefly by the Ontario Court of Appeal in R v Must, 2011 ONCA 390. In Must there was an appeal from a conviction on a charge of fraud. In convicting, the trial judge had accepted as a fact that the accused honestly believed that the complainant company that he defrauded was liable to him in damages for breach of contract. In this regard, the Court of Appeal concluded: “We agree with the trial judge that this belief did not give the appellant a defence” at para 2. [30] Finally, this issue was addressed in greater detail by Justice Harris for the British Columbia Court of Appeal in R v Kingsbury, 2012 BCCA 462 at para 40:I do not agree that an honest mistake about whether in law an accused is entitled to take property or put another’s economic interests at risk is relevant to the mens rea of fraud, any more than an honest belief that the prohibited conduct is not dishonest or is not wrong is relevant to mens rea. In my opinion, it is sufficient that an accused intend or foresee the facts or circumstances that constitute deprivation.
[31] Christopher Suzi’s belief that he was entitled to the property in question was a mistake of law and does not negative the mens rea of fraud. “Lack of colour of right is not embraced within the definition of fraud and therefore its relevance is not contemplated by the definition of the offence of fraud”: Kingsbury at para 52. Self-help is not available to the accused, and his belief in entitlement does not raise a reasonable doubt. If Mr. Suzi believed that he was owed money his remedy was to sue, not to commit fraud.Source link
