DATE: 20060419

DOCKET: C43838

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – IAN SMITH (Appellant)

BEFORE:

SIMMONS, CRONK AND LANG JJ.A.

COUNSEL:

J. Douglas Grenkie, Q.C.

for the appellant

Daniel Guttman

for the respondent

HEARD & RELEASED ORALLY:

April 12, 2006

On appeal from the convictions entered by Justice Peter Adams of the Ontario Court of Justice dated May 4, 2005.

E N D O R S E M E N T

[1] The appellant appeals from his convictions on four counts of fraud under $5,000. He submits that the findings of guilt were unreasonable because the Crown adduced no evidence capable of supporting a finding of the requisite mens rea for fraud.

[2] The charges arose in connection with a computer business run by the appellant. As of the fall of 2003, the business had been in operation for about three years. Between mid-August and late September 2003, the appellant obtained cash from five customers who paid in full for computer systems. With the exception of two of those customers, who received some limited parts for their systems, none of the five computer systems was ever delivered. The business ultimately ceased operations sometime in the fall of 2003.

[3] One of the Crown witnesses worked for the business during the first two weeks of September 2003. She testified about changes in the appellant’s pattern of doing business, stating that, during that period, the appellant sometimes required money from a subsequent customer in order to be able to pay for equipment ordered by a previous customer.

[4] In his reasons, the trial judge accurately set out the test for the mens rea for fraud, relying on R. v. Theroux (1998), 79 C.C.C. (3d) 449 at 460. In applying that test to the facts of this case, the trial judge said: “This is about whether he knew when he took the money he did so when he was knowingly unable to produce the systems at the time and for those individuals who gave him their money in this difficult period.” The trial judge stated that he had a doubt that the appellant’s intent when receiving the money on the first incident was dishonest. As for the remaining four counts, the trial judge concluded that the appellant took the money from these customers knowing that he could not or would not produce the goods. He, therefore, convicted the appellant on these charges.

[5] On our review of the record, there was evidence capable of supporting the trial judge’s findings of guilt. Having regard to the trial judge’s specific factual findings concerning the appellant’s knowledge of the risk created for the customers, the issue of whether or not a corporation was involved in the business is immaterial.

[6] Accordingly, for the reasons given, the appeal must be dismissed.

“Janet Simmons J.A.”

“E.A. Cronk J.A.”

“S.E. Lang J.A.”