DATE: 20040720

DOCKET: C36262

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JOSPEH BENE (Appellant)

BEFORE:

WEILER, SHARPE and SIMMONS JJ.A.

COUNSEL:

Paul McLeod for the appellant

Alex Hrybinsky for the Crown

HEARD:

July 15, 2004

On appeal from the conviction imposed by Justice P. Mitchell of the Ontario Court of Justice dated November 21 2000.

A P P E A L B O O K E N D O R S E M E N T

[1] We see no merit in this appeal. In oral argument, counsel advanced an argument not raised at trial or in his factum, namely, that the evidence was that the cheque was made by Gan Canada whereas the information specified that the victim of the fraud was Premier Marine insurance Managers. Had this point been raised at trial, an amendment almost certainly would have been granted. The proof of loss was addressed to both corporate entities. The appellant has demonstrated no prejudice and if necessary, we could amend the information now (See ss. 683(1)(g) and 673).

[2] We do not agree with the argument that the Crown’s case fails through want of proof that the cheque to the appellant was actually cashed. The filing of the proof of claim is sufficient to prove risk of deprivation and in any event, as there was proof the cheque was delivered to the appellant, deprivation could be inferred.

[3] The appeal is accordingly dismissed.

“Robert J. Sharpe J.A.”