R. v. Must, 2011 ONCA 390
COURT OF APPEAL FOR ONTARIO
Rosenberg, Lang and Watt JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Robert Must
Appellant
Mark Halfyard, for the appellant
Peter Scrutton, for the respondent
Heard: May 17, 2011
On appeal from conviction entered by Justice John Macdonald of the Superior Court of Justice dated, December 18, 2009.
ENDORSEMENT
1The appellant appeals his conviction for fraud by Macdonald J. on the basis that the trial judge erred in failing to find that the appellant had a colour of right defence to the charge. For the following reasons, the appeal is dismissed.
2The trial judge rejected the appellant’s primary position that his contract with iGate was still in effect and that he was entitled to continue to receive payments under the contract. He also found that the appellant forged the signature of the “client” on the time sheets in order to obtain the payments, to which he was not legally entitled. The trial judge did, however, accept that the appellant honestly believed that iGate was liable to him in damages for breach of contract because they did not terminate the contract by written notice in accordance with its terms. We agree with the trial judge that this belief did not give the appellant a defence.
3To succeed, the appellant must show that the facts as found by the trial judge negative the mens rea for fraud. Those facts do not negative the mens rea; to the contrary they show that the appellant had the requisite mens rea. The mens rea for fraud has been authoritatively determined in R. v. Théroux, 1993 134 (SCC), [1993] 2 S.C.R. 5 at para. 24:
Having ventured these general comments on mens rea, I return to the offence of fraud. The prohibited act is deceit, falsehood, or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may, as we have seen, consist in merely placing another's property at risk. 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 fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence. To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence (see Williams, supra, c. 3), 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). The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence. [Emphasis added.]
4On the findings of fact, the appellant was aware that he was undertaking a prohibited act, namely the deceit in forging the time sheets, which could cause a risk of deprivation in the sense of depriving iGate of its property. The accused’s personal belief of entitlement to damages for breach of contract did not negative the mens rea. That belief falls within the statement in Théroux: “The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence.” The knowledge of risk of deprivation is found in the trial judge’s finding that the appellant, “unilaterally determined that his entitlement would be full payment for the time from January 6th to March 23rd, 2006, without affording [iGate] from whom he sought payment the opportunity either to scrutinize the amount he sought or the period of claimed entitlement, or to dispute his claims”.
5Accordingly, the appeal is dismissed.
Signed: “M. Rosenberg J.A.”
“S. E. Lang J.A.”
“David Watt J.A.”
