R. v. Cuerrier - British Columbia Review Board

R. v. Cuerrier
114 The Olan approach was endorsed in R. v. Théroux, [1993] 2 S.C.R. 5. There the importance of
defining the offence of fraud in light of the underlying objective of promoting honesty in commercial
dealings was emphasized. McLachlin J. described the requisite elements of criminal fraud in these
words, at pp. 25-26:
To establish the actus reus of fraud, the Crown must
establish beyond a reasonable doubt that the accused
practised deceit, lied, or committed some other
fraudulent act. . . . [I]t will be necessary to show that
the impugned act is one which a reasonable person would
see as dishonest. Deprivation or the risk of deprivation
must then be shown to have occurred as a matter of fact.
To establish the mens rea of fraud the Crown must prove
that the accused knowingly undertook the acts which
constitute the falsehood, deceit or other fraudulent
means, and that the accused was aware that deprivation
could result from such conduct.
It was held that mere negligent misrepresentation would not amount to a fraudulent act. However,
"deliberately practised fraudulent acts which, in the knowledge of the accused, actually put the property
of others at risk" should be subject to criminal sanction (p. 26).
115 Next it must be determined whether non-disclosure can constitute fraud. Traditionally, courts
were of the view that fraud does not include non-disclosure (R. v. Brasso Datsun (Calgary) Ltd. (1977),
39 C.R.N.S. 1 (Alta. S.C.T.D.)). However, Olan, supra, and Théroux, supra, have endorsed a wider
interpretation of fraud which can include non-disclosure in circumstances where it would be viewed by
the reasonable person as dishonest. This view was upheld in R. v. Zlatic, [1993] 2 S.C.R. 29. At p. 44
McLachlin J. speaking for the majority, held that if the means to the alleged fraud can be characterized
objectively as dishonest they are fraudulent. This, it was observed, can include the non-disclosure of
important facts.
116 In summary, it can be seen that the essential elements of fraud are dishonesty, which can
include non-disclosure of important facts, and deprivation or risk of deprivation.
117 The principles which have been developed to address the problem of fraud in the commercial
context can, with appropriate modifications, serve as a useful starting point in the search for the type of
fraud which will vitiate consent to sexual intercourse in a prosecution for aggravated assault. It is now
necessary to consider the type of fraud or fraudulent conduct which will vitiate consent in cases of
sexual assault.
C. What Is the Type of Fraud Which May Vitiate Consent in Cases of Sexual Assault?
http://ql.quicklaw.com/qltemp/C2KEwCMAFbZMTYcs/00011scr-00019415%2ehtm (36 of 44)2007-08-21 1:18:15 PM