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FACTS

Théroux was the directing mind of a residential construction company that took deposits from co-contractants on the basis that the deposits were insured.  They weren’t. The company went bust and the deposit money was lost. Théroux was charged with fraud.  

ISSUE

What constitutes the mens rea for the offence of fraud? Did Théroux’s belief that the houses would be built negate the mens rea for fraud?

HELD

No. Appeal dismissed.

RATIO

Théroux had subjective knowledge that others would act on his lie and he thereby put their property at risk.

NOTES

The mens rea of fraud is established by proof of:

1.

Subjective knowledge of the prohibited act (deceit, falsehood); and

2.

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).

Recklessness and wilful blindness

Sansregret v. R. [1985] 2 S.C.R. 5

FACTS

This is a leading decision on the crime of rape. It will be considered later in section on Sexual Assault. It’s included here to highlight MacIntyre’s unanimous judgement in which he defines and distinguishes recklessness and wilful blindness.  

KEY

DOCTRINE

Recklessness: We must not confuse recklessness with negligence, the civil concept requiring an objective standard of the reasonable man.  Recklessness, to form a part of the criminal mens rea, must have an element of the subjective.  It is the conduct of one who sees the risk and takes the chance.

Wilful blindness: results from a different mental attitude leading to different legal results.  It arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. His fault is in deliberately failing to inquire when he knows there is reason to.

R. v. Currie (1975) 24 C.C.C. (2d) 292 (Ont. C.A.)

FACTS

Currie charged with unlawfully and knowingly uttering a forged document (trying to cash a stolen cheque at a CIBC branch).  He claims he didn’t know it was a stolen cheque with a forged signature on the back and was only trying to help out the guy who gave it to him to cash, who seemed like an honest guy.  The trial judge convicted on the ground that Currie was wilfully blind.

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