Tromperie, mensonge ou autres moyens frauduleux

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• < Droit pénal/Détermination de la peine
• < Infractions
• < Fraude

Principes généraux

La Couronne a le fardeau de prouver hors de tout doute raisonnable que la privation a été causée par « la tromperie, le mensonge ou d'autres moyens frauduleux ».

Le délit d’évasion fiscale est une forme de fraude et les éléments de l’évasion fiscale peuvent donc constituer une forme de fraude pénale.

« Fraude » a été défini comme signifiant « privation malhonnête ».

Actus Reus

Fraud is not defined in the Criminal Code. At common law it requires the basic elements of "dishonesty" and "deprivation."

To "defraud" means to "dishonest deprivation." To that end, the Crown must prove that the dishonest means "did in fact defraud." Deprivation is usually estlablished on "proof of a detriment, prejudice or risk of prejudice to the economic interests of the victim."

The actus reus for the offence is made out where there is:

1. a prohibited act of deceit, a falsehood or some other fraudulent means; et
2. a deprivation caused by the prohibited act. Either an actual loss or a pecuniary interest at risk.

Actus reus is determined "entirely on the objective facts."

Where deceit or falsehood is made out, no further conduct is required to be proven.

Subsequent honouring of an intention after a fraudulent act does not negate its criminal effect.

Mens Rea

The mens rea for fraud is:

1. the subjective awareness of undertaking the prohibited act of deceit, a falsehood or some other fraudulent means and
2. the subjective awareness that the prohibited act created the risk of depriving another of property.

The personal feelings of the “morality or honesty” of the act is not relevant.

It is sufficient for the Crown to prove that the accused conduct was "deliberate or a product of an operating mind with the relevant facts, the circumstances in which they were undertaken, and the consequences that might result."

Recklessness and Wilful Blindness

The accused may be found guilty on the basis of recklessness or willful blindness. This standard applies both to the conduct and the consequence of the offence.

The awareness of the risk of deprivation include recklessness.

Making use of funds which the accused was wilfully blind as to its source is considered dishonest.

Inferences

Evidence of legitimate transactions with an absence of any "badges of fraud" can support an inference of "non-criminal" intent.

Where there is a rational basis to infer that the accused was simply duped into their role with a fraudulent conspiracy, there may be no criminal responsibility attached.

Mistaken Belief / Self-Help

A mistaken belief that the victim owes the accused money cannot justify collecting debt by deceit.

An accused's mistaken belief as to their legal right to take another person's property does not negate the mens rea for fraud.

That the accused simply "hoped the deprivation would not take place" is not a defence where the accused knew that he was undertaking a prohibited act that could cause deprivation.

The mens rea of fraud is most frequently proven by way of inference from circumstantial evidence.

Wilful blindness appears in two situations in a fraud case:

1. An accused is wilfully blind with respect to the conduct element of the actus reus of fraud when he or she is aware that certain facts exist which would make such conduct a deceit, falsehood, or other fraudulent means, but deliberately refrains from making inquiries so as to remain ignorant;
2. An accused is wilfully blind with respect to the consequence of the actus reus of fraud when he or she is aware that certain facts exist giving rise to a belief that the prohibited consequences will flow from such conduct, but deliberately refrains from making inquiries so as to remain ignorant.

In social assistance or welfare fraud, the accused does not need to know that the regulations prohibited false applications.

Deceit or Falsehood

Deceit

"Deceit" has been defined as "inducing a person to believe something is true where the deceiver knows that it is false."

"Deceit" has also been characterized as "an untrue statement made by a person who knows that it is untrue, or has reason to believe that it is untrue, but makes it despite that risk, to induce another person to act on it, as if it were true, to that other person’s detriment."

Deceit will always require a subjective awareness of the dishonesty.

Falsehood

"Falsehood" is a "deliberate lie."

"Dishonesty" is determined on an objective standard determined by what a reasonable person would consider dishonest. Dishonesty can also include non-disclosure where a reasonable person would consider it dishonest.

A dishonest act can include the use of funds for a purpose other than the purpose for which they were received.

Failure to Detect Conduct

A victim's failure to detect or avoid the deception does not remove any degree of culpability.

Examples

Deceptive and false acts include conduct such as:

• filing of false invoices for work not done;
• filing of false accounting documents
• filing false forms to obtain social assistance
• filing false documents to obtain insurance proceeds
• misrepresenting the existence of investment opportunities
• misrepresenting the accused's personal circumstances in online datingin order to develop a personal relationship and obtain cash and credit.
• misrepresenting the need and costs of repairs.
• a car dealership rep misrepresenting vehicles for sale as new when they were used demo models.

Other Fraudulent Means

"Other fraudulent means" is a "term that covers more ground than either deceit or falsehood. It includes any other means, which are not deceit or falsehood, properly regarded as dishonest according to the standards of reasonable people" but include all other means that are "stigmatized as dishonest." The question of whether conduct fits into "other fraudulent means" is a question of fact.

The actus reus consist of "dishonest" conduct that causes deprivation.

Dishonesty

Dishonesty can be an act or an omission whereby silence about and essential aspect.

The issue of actus reus is determined objectively as to whether a reasonable person would consider the conduct to be "dishonest." The standard is not based on the trier-of-fact's own personal views of honesty but rather what the "community" would consider to be honest and dishonest. It includes "conduct which ordinary decent people would feel was discreditable as being clearly at variance with straightforward or honourable dealings, is dishonest conduct."

Dishonesty "may include, but is not limited to, deceit or falsehood."

Dishonesty is distinguished from "carelessness", "improvidence", and "sharp practices."

Merely falling "below the highest standard of straightforward or honourable dealings ... alone" will not be sufficient to make out fraud.

Examples of Fraudulent Means

Types of conduct include:

1. misuse of corporate assets, including for personal use
2. breach of trusts / exploiting weakness of another;
3. non-disclosure of material facts
4. unauthorized diversion of funds or property
5. breach of contractual obligations

These classes of "other fraudulent means" can encompass many scenarios.

Misuse of Assets

Fraud includes the use of company assets for personal purposes.

Directors who use assets for purposes which are not bona fides in the best interests of the company and not for a legitimate purpose then the directors may be liable for fraud.

A president and sole shareholder of a real estate company who redirected money from clients to him personally instead of the company was found guilty of fraud and theft.

Voir également: R c Black, 1983 CanLII 3493 (ON CA), (1983) 5 CCC (3d) 313, par Grange JA

Material Non-Disclosure

Materials omissions are an important element to "other fraudulent means." Where an accused who omitted to tell his investors, who are purchasing a building, that he bought it personally and was re-selling for a profit.

Where the Crown is relying on material non-disclosure, there must be a duty to disclose, typically arising from the relationship between the parties.

Deprivation or Risk of Deprivation (Prohibited Consequences)

The requirement of a deprivation "is satisfied on proof of detriment, prejudice, or risk of prejudice to economic interests of the victim. It is not essential that there be actual economic loss as the outcome of the fraud."

It is further required in order to prove "dishonest deprivation" that the victim would not have otherwise allowed the deprivation to happen if they had known the true state of affairs.

It is no defence for the accused to have simply "hoped" that deprivation would not have occurred or that they felt that there was "nothing wrong" with their conduct.

Actual loss is not necessary, it is sufficient to show an actual risk of loss. "Deprivation" includes the risk of deprivation.. It may also include risk of prejudice to economic interests.

The accused does not have to obtain any property to complete the offence. Thus, if the accused is deprived of property due to it going to someone else is enough.

There are three ways to prove deprivation:

1. that as a consequence of the prohibited act there be a deprivation of “the economic interests of the victim”
2. that the prohibited consequence of the dishonest act is to deprive another of “what is or should be his”, which may consist of “merely placing another’s property at risk”; or
3. “[a possible] actual loss or the placing of the victim’s pecuniary interests at risk” caused by the dishonest act

Where the Crown relies on actual deprivation, a reasonable doubt whether the victim was deprived will result in an acquittal.

A risk of deprivation only occurs from the time that assets are transferred.

Causation

The Crown must also prove that the dishonest means used did in fact result in the deprivation. The accused is criminally responsible so long as they desired the outcome or foresaw it as a consequence of their criminal conduct.