Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Cassandra Bruyns
Before: Justice D.A. Harris
Heard on: November 12, 13 & 17, 2015, and February 8, 2016
Reasons for Judgment released on: April 13, 2016
Counsel:
- Arish Khoorshed, for the Crown
- Scott Aird, for the defendant Cassandra Bruyns
HARRIS J.:
INTRODUCTION
1Cassandra Bruyns has been charged with three offences, all of which are alleged to have occurred in Oakville between November 30, 2013 and May 2, 2014. The first two charges allege that, being entrusted with a Power of Attorney with respect to the Disposition of Personal Property of her father Leonard Schuller, she (1) stole money exceeding $5000 contrary to section 334 (a) of the Criminal Code and (2) defrauded him of money exceeding $5000 contrary to section 380(1) (a). The third charge alleges that, being the trustee of money for his benefit, she did convert money to a use not authorized by the trust, contrary to section 336.
2All of these are indictable offences. Ms. Bruyns elected to be tried in the Ontario Court of Justice and pled not guilty.
3Ultimately, Crown counsel and counsel for Ms. Bruyns were in agreement with respect to most of the facts in this case.
4Ms. Bruyns was entrusted with a Power of Attorney with respect to the Disposition of Personal Property of her father Leonard Schuller and with a Power of Attorney with respect to his personal care. She did use $4000 of his money to pay her own personal bills. This caused him to default on payments to the long term care facility where he was residing. That facility took no steps against him however. Ms. Bruyns repaid the entire $4000 subsequent to the charges being laid.
5The issue before me is whether Ms. Bruyns had the necessary mens rea, was she acting with colour of right or with an honest but mistaken belief that she was entitled to loan his money to herself in these particular circumstances.
THE LAW
6The offences which Ms. Bruyns is alleged to have committed all require both (1) an act of deceit, falsehood or other fraudulent means and (2) that this act occur without colour of right.
7Her actions clearly fall into the category of "other fraudulent means". In R. v. Zlatic, the Supreme Court of Canada stated that:
the third 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, to date, 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
8With respect to the issue of colour of right, the Ontario Court of Appeal stated the following in R. v DeMarco:
The term "colour of right" generally, although not exclusively refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act "without colour of right", even though it may be unfounded in law or in fact. Reg. v. Howson, [1966] 2 O.R. 63. The term "colour of right" is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: Reg. v. Howson, supra. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.
9If an accused has an honest belief in a state of facts which if they existed would constitute a legal justification or excuse for her actions, that belief negatives the alleged offence.
10The test for the determination of the presence of an honest belief is a subjective rather than an objective one. This is modified somewhat however in the lengthy discussion of the mens rea of fraud in the Supreme Court of Canada decision in R. v. Theroux. This reads as follows:
20 This brings us to the mens rea of fraud. What is the guilty mind of fraud? At this point, certain confusions inherent in the concept of mens rea itself become apparent. It is useful initially to distinguish between the mental element or elements of a crime and the mens rea. The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent -- those who do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of the prohibited actus reus. Thus in the crimes of homicide, we speak of the consequences of the voluntary act -- intention to cause death, or reckless and wilfully blind persistence in conduct which one knows is likely to cause death. In other offences, such as dangerous driving, the mens rea may relate to the failure to consider the consequences of inadvertence.
21 This brings me to the question of whether the test for mens rea is subjective or objective. Most scholars and jurists agree that, leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens rea is subjective. The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the court looks to the accused's intention and the facts as the accused believed them to be: G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 727-28.
22 Two collateral points must be made at this juncture. First, as Williams underlines, this inquiry has nothing to do with the accused's system of values. A person is not saved from conviction because he or she believes there is nothing wrong with what he or she is doing. The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral. Just as the pathological killer would not be acquitted on the mere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that what he was doing was honest.
23 The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thought was in the accused's mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference. The fact that such an inference is made does not detract from the subjectivity of the test.
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.
25 This applies as much to the third head of fraud"other fraudulent means", as to lies and acts of deceit. Although other fraudulent means have been broadly defined as means which are "dishonest", it is not necessary that an accused personally consider these means to be dishonest in order that he or she be convicted of fraud for having undertaken them. The "dishonesty" of the means is relevant to the determination whether the conduct falls within the type of conduct caught by the offence of fraud; what reasonable people consider dishonest assists in the determination whether the actus reus of the offence can be made out on particular facts. That established, it need only be determined that an accused knowingly undertook the acts in question, aware that deprivation, or risk of deprivation, could follow as a likely consequence.
26 I have spoken of knowledge of the consequences of the fraudulent act. There appears to be no reason, however, why recklessness as to consequences might not also attract criminal responsibility. Recklessness presupposes knowledge of the likelihood of the prohibited consequences. It is established when it is shown that the accused, with such knowledge, commits acts which may bring about these prohibited consequences, while being reckless as to whether or not they ensue.
27 These doctrinal observations suggest that the actus reus of the offence of fraud will be established by proof of:
the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and
deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim's pecuniary interests at risk.
Correspondingly, the mens rea of fraud is established by proof of:
subjective knowledge of the prohibited act; and
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).
28 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.
THE DEFENCE POSITION
11In this case, counsel for Ms. Bruyns argued that Clause 6 in the Power of Attorney for the Management of Property signed by Ms. Bruyns' father authorized her to act as she did. Clause 6 states:
My attorneys shall also be authorized to make expenditures on my behalf for the purpose of making gifts or loans to my friends and relatives and for the purpose of making charitable gifts if, in the absolute discretion of my attorneys, they have reason to believe that I would have made such gifts or loans if I were capable of doing so personally.
12Counsel further argues that Ms. Bruyns had reason to believe that her father would have loaned the money to her since he had in fact made such loans to her while he was still capable of managing his own affairs.
13Further, Ms. Bruyns believed that it was in her father's best interests for her to use his money to pay her expenses so that she might remain financially solvent and in her home where she would be available to continue to take care of him. She believed that she was the only person who was both available and willing to do this since her siblings were either not able or not willing to take on these duties.
14Accordingly, she was acting "with colour of right".
THE CROWN POSITION
15Crown counsel argued that the situation at the time of the alleged offence was very different from when her father had made those earlier loans to her.
16Firstly, he was living with her at the time that he had made those loans to her. As a result, assisting her in maintaining her residence also maintained his. At the time of the alleged offence, he was living separate from her in a long term care facility where staff people were present to attend to his immediate physical needs.
17Secondly, she and her siblings had agreed to divide amongst themselves the proceeds from the sale of their father's condominium. Any other assets were outside of Canada and could not be accessed. Accordingly, when Ms. Bruyns "loaned" her father's money to herself, there were not sufficient funds to cover the cost of his residential care at the long term care facility. This created a different situation in that while Ms. Bruyns' father had always paid his debts before, he was now defaulting on his financial obligations to the facility that was tasked with his care.
18Crown counsel also argued that Ms. Bruyns was subject to sections 32 and 66 of Ontario's Substitute Decisions Act, 1992. The pertinent portions of section 32 state that:
32.(1) A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person's benefit.
(1.1) If the guardian's decision will have an effect on the incapable person's personal comfort or well-being, the guardian shall consider that effect in determining whether the decision is for the incapable person's benefit.
(1.2) A guardian shall manage a person's property in a manner consistent with decisions concerning the person's personal care that are made by the person who has authority to make those decisions.
(1.3) Subsection (1.2) does not apply in respect of a decision concerning the person's personal care if the decision's adverse consequences in respect of the person's property significantly outweigh the decision's benefits in respect of the person's personal care.
(6) A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property.
(7) A guardian who does not receive compensation for managing the property shall exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs.
19The pertinent portions of section 66 state that:
66.(1) The powers and duties of a guardian of the person shall be exercised and performed diligently and in good faith.
(2) The guardian shall explain to the incapable person what the guardian's powers and duties are.
(2.1) The guardian shall make decisions on the incapable person's behalf to which the Health Care Consent Act, 1996 applies in accordance with that Act.
(3) The guardian shall make decisions on the incapable person's behalf to which the Health Care Consent Act, 1996 does not apply in accordance with the following principles:
If the guardian knows of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, the guardian shall make the decision in accordance with the wish or instruction.
The guardian shall use reasonable diligence in ascertaining whether there are such wishes or instructions.
A later wish or instruction expressed while capable prevails over an earlier wish or instruction.
If the guardian does not know of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, or if it is impossible to make the decision in accordance with the wish or instruction, the guardian shall make the decision in the incapable person's best interests.
(4) In deciding what the person's best interests are for the purpose of subsection (3), the guardian shall take into consideration,
(a) the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;
(b) the person's current wishes, if they can be ascertained; and
(c) the following factors:
- Whether the guardian's decision is likely to,
i. improve the quality of the person's life,
ii. prevent the quality of the person's life from deteriorating, or
iii. reduce the extent to which, or the rate at which, the quality of the person's life is likely to deteriorate.
- Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.
20Crown counsel argued that Ms. Bruyns did not act in accordance with either of these provisions.
ANALYSIS
21I have watched the video recording of Ms. Bruyns' interview with police. I also saw and heard her testify in court. There is no doubt in my mind that she believed that she was entitled to do as she did. In fact, her belief was so strong that the word "entitled" barely begins to describe her attitude.
22I am satisfied beyond a reasonable doubt however that her belief did not amount to "colour of right".
23When her father loaned money to Ms. Bruyns in the past, this act did not cause him to go into debt. It did not cause him to default on his other financial obligations. It did not put him at risk of being denied any services such as those that the long term care facility provided to him.
24In this case however, when Ms. Bruyns "loaned" her father's money to herself, that act did do all of those things. It also put the long term care facility into the position of having to decide whether to deny its services to the father or to suffer economic harm itself. The fact that the facility chose the latter course of action does nothing to absolve Ms. Bruyns.
25In light of these very different circumstances, there was no reason for Ms. Bruyns to believe that her father would have made the loan if he were capable of doing so personally.
26It is interesting to note that Ms. Bruyns refused to reduce, to any degree, the level of care provided to her father and in fact expressed pride in that refusal. I see little to be proud of when she was clearly expecting the facility to maintain the highest level of care even though payment for any care would not be forthcoming. She was simply passing her responsibility on to the facility.
27I am satisfied beyond a reasonable doubt that Ms. Bruyns failed to exercise and perform her fiduciary powers and duties diligently, with honesty and integrity and in good faith, for her father's benefit. The adverse consequences of her actions in respect of his property significantly outweighed the benefits in respect of his personal care.
28I am satisfied that the Crown has proven beyond a reasonable doubt all of the essential elements of the offences charged except for the reduced value of the money taken. Accordingly I find Ms. Bruyns not guilty of theft over $5000, but guilty of theft under $5000 contrary to section 334 (b) of the Criminal Code. Further, I find her not guilty of fraud over $5000, but guilty of fraud under $5000 contrary to section 380(1) (b) of the Criminal Code. Finally, I find her guilty of criminal breach of trust.
29I will now hear submissions from counsel with respect to the issue of whether I should enter convictions or enter conditional stays with respect to the various offences.
Released: April 13, 2016
Signed: "Justice D.A. Harris"