Court of Appeal for Ontario

Citation: R. v. Bernard, 2013 ONCA 371 Date: 20130605 Docket: C52394

Before: Doherty, Simmons and Strathy JJ.A.

Her Majesty the Queen Respondent

and

Gregory Bernard Appellant

Counsel: G. McInnes, for the appellant Michael Bernstein, for the respondent

Heard and released orally: May 24, 2013

On appeal from the conviction entered by Justice Mossip of the Superior Court of Justice, dated November 24 and December 9, 2009.

Endorsement

[1] It is common ground that s. 380 creates the single offence of fraud. The reference to “public” in s. 380 is a means of describing a victim of an alleged fraud and is used in conjunction with the phrase “any person whether ascertained or not”. Both phrases potentially encompass any legal entity capable of being defrauded. Those entities are captured by the definitions of “everyone”, “person” and “organization” in the Criminal Code.

[2] The word “person” in s. 380 refers to a specific victim or victims of an alleged fraud. The word “public” has a broader connotation and can properly be used to describe the victim, for example, in cases where it is alleged that the fraud targeted the community at large or a segment of the community.

[3] In this case, the Crown alleged that the conspiracy to defraud targeted a segment of the community – operators of “big box” retail stores – throughout a wide area of Ontario and Québec. The fact that some or indeed all of the operators of the stores actually defrauded in the course of carrying out the conspiracy were corporations is irrelevant to the description of the alleged victims of the charge of conspiracy to defraud contained in the indictment. The agreement did not target corporations only, but rather targeted that segment of the community that operated a particular kind of retail store. In any event, corporations as legal entities capable of being defrauded under the Criminal Code are not excluded from the concept of the “public” as it used in s. 380 of the Criminal Code.

[4] The indictment properly charged a conspiracy to defraud the public and the conspiracy proved, that is, an agreement to defraud the operators of “big box” retail stores of merchandise through the passing of counterfeit money and the subsequent exchange of the merchandise for real money, established a conspiracy to defraud the public.

[5] The Crown could have alleged the conspiracy with more specificity and it may be that an application for particulars would have been successful. None of that matters. There was no request for particulars and there is a specific finding that the appellant was in no way prejudiced by the way the indictment was drawn. The appellant knew exactly the case he had to meet.

[6] The appeal must fail.

[7] For the sake of completeness, however, we will address a second argument advanced by counsel for the appellant. The trial judge, after finding that the conspiracy described above existed, went on to indicate that the Crown also proved a conspiracy to defraud the public based on the inevitable economic prejudice suffered by the public through the circulation of the counterfeit money after its initial use in the big box stores. Counsel for the appellant persuasively argued that this alleged agreement was not part of the indictment or part of the Crown’s case at trial. We agree. Ultimately, however, this submission does not assist the appellant as counsel frankly, and in our view properly, acknowledged this was an alternative basis for conviction.

[8] The appeal is dismissed.

“Doherty J.A.”

“Janet Simmons J.A.”

“G.R. Strathy J.A.”