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LAW 602 (3)

LAW 602 Final: Final Exam Review with Sample Exam at end

21 Pages

Law and Business
Course Code
LAW 602
Eric Libman

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What is meant by “fraud”: – To defraud is to deprive by deceit; it is deceit to induce person to act to his/injury; to deceive is by falsehood to induce state of mind, to defraud is by deceit to induce course of action: London & Globe Finance Corp Ltd (Re), Ch (1903) – To defraud ordinarily means to deprive a person dishonestly of something which is his/hers or of something to which he/she is or would or might but for perpetration of fraud be entitled: Scott v Metropolitan Police Commissioner, HL (1974) The Criminal Code defines Fraud as (page 40): - Everyone who by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or a person, whether ascertained or not of any property, money or valuable security or any service. a) Is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds $5000 OR b) Is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 2 years OR c) Is guilty of an offence punishable on summary conviction • Examples of Fraud: – Victim may be defrauded by being deprived of something, he/she may be deprived of something either by being fraudulently induced to part with it or by having that to which he/she is entitled fraudulently diverted or withheld: R v Renard, Ont.C.A. (1974) – Accused’s acts in procuring third party to put him in position to take money to which complainant (victim) is otherwise entitled constitutes fraud: R v Kribbs, Ont.C.A. (1968) – Charge of fraud is proper where principle shareholder fraudulently depletes assets of his alter ego, a limited company: R v Marquardt, B.C.C.A (1972) R v Olan, Hudson, Hartnett, SCC (1978) – accused cause company over which they have control to divest its holdings in blue chip securities, purchase shares in company whose major asset was debt owed to company controlled by two of accused • “other fraudulent means” include not only means which are in nature of falsehood or deceit, but all other means which can properly be stigmatized as dishonest • No exhaustive definition of “defraud”, but Crown must at least prove dishonesty and deprivation – element of deprivation satisfied on proof of detriment, prejudice or risk of prejudice to economic interests of victims • Issue in case: whether use of victim’s assets was in furtherance of bona fide business interest of victim or was it expended in advancing personal interests of accused, and whether victim suffered deprivation as a result Dishonest and Deprivation are the basis of convicting someone of fraud.Dishonesty: Standard to be applied is that of reasonable person. An underhanded design which has the effect, or which engenders the risk, of depriving others of what is theirs. Dishonestly lies in wrongful use of something in which another person has an interest, in such manner that other’s interest is extinguished or put at risk. Use is wrongful in sense that it constitutes conduct which reasonable decent persons would consider dishonest and unscrupulous: R v Zlatic, SCC (1993) Deprivation: Economic loss does not have to be proven by Crown, fraud complete when money is paid for shares of company to which accused has falsely ascribed certain attributes: R v Knelson and Baran, BCCA (1962). Economic loss need not occur, but there must be actual risk of prejudice – where victim merely acts as conduit in transaction and no actual risk of prejudice to her economic interests, there is no fraud: R v Campbell and Kotler, SCC (1986). Dishonest deprivation occurs where victim induced to make loan which it would not have made had it known the true state of affairs – true borrower was officer of company which was subsidiary of victim; deceit of accused placed accused in conflict of interest, imperilled victim’s economic interests even though loan secured and used for purpose for which it was advanced: R v Knowles, Ont.C.A. (1979) Elements of Fraud offence to be proven beyond reason doubt by Crown: Actus Reus (physical act) 1. prohibited act, be it act of deceit, falsehood or some other fraudulent means, and 2. deprivation caused by the prohibited act, which may consist in actual loss or placing of victim’s pecuniary interests at risk Mens Rea (mental requirement) 1. subjective knowledge of the prohibited act, 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) R v Theroux, SCC (1993) - Accused properly convicted of fraud: Accused directing mind of company involved in residential construction. Company enters into agreements with number of individuals for purchase of residences. Contracts made, deposits taken on basis of false representation by company that deposits insured; representation made orally, backed up by certificate of participation in insurance program, brochure describing program distributed to most of depositors. In fact, company never paid premiums due on first application for participation in insurance program, second application never completed. Company becomes insolvent, project not completed, most of depositors lose their money. Accused, as directing mind of company, responsible for misrepresentations to induce potential home purchasers to sign contract, give deposit, however, accused sincerely believed residential project would be completed, hence deposits would not be lost. What constitutes falsehood, deceitful act, other fraudulent means determined objectively, by reference to what reasonable person would consider to be dishonest act. Where conduct, knowledge as required for fraud is made out, accused is guilty whether he actually intended deprivation or was reckless as to whether it would occur. Accused`s belief that conduct is not wrong or that no one will get hurt in the end affords no defence. Accused committed deliberate falsehoods which caused or gave rise to deprivation (actus reus); accused told depositors they had insurance protection when he knew this to be false (mens rea)Regulatory Offences 1) Mens Rea – Government needs to prove that you committed the act and had the intent to commit the guilty act. “Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness must be proved by the prosecution either as an inference from the nature of the act committed or by additional evidence. 2) Strict Liability – offences in which there is no necessity for the prosecution to prove the existence of mens rea, doing the prohibited act imports that offence, leaving it open to the accused to exercise due diligence. “Defence available if accused reasonably believed in mistaken set of facts which, if true, would render act or omission innocent, or if he/she took all reasonable steps to avoid the particular event.” 3) Absolute Liability – Offences where it is not open to the accused to exculpate himself by showing that he was free of fault. Page 6-79 – Court ruled that the accused could not escape liability on the grounds that it hired experts to design and supervise construction of its sewage system where it failed to take all reasonable steps to avoid the escape of raw and partially treated sewage. But there is no duty imposed on an employer to anticipate every possible failure. What is required is that the employer exercise every reasonable precaution. To punish an employer who has established a reasonable system, implemented it and provided for reasonable monitoring would be to punish the blameless. Regulatory offences and criminal offences (p2-5)- fact that statute contains prohibition and penalty does not necessarily mean statute criminal in nature. Regulatory statutes commonly prohibit violations of their provisions or regulations under them, and provide penal sanctions to be applied if violations do in fact occur. Any regulatory statute lacking such prohibitions and penalties would be meaningless: R v Hydro-Quebec, SCC (1997) Same “regulatory misconduct” subject to both criminal and civil penalties (p2-7): Competition Act offence of false or misleading advertising contained in Criminal Code until 1969, then transferred to Combines Investigation Act, then to Competition Act – legislation allows for regulator to elect to deal with misleading representations, deceptive marketing practices under criminal track (prosecution) or civil track (mediation, reimbursement, etc). Criminal Code workplace safety provisions s.22.1, 22.2 imposing liability on organizations – legislation criminalizes conduct formerly prosecuted under provincial occupational health and safety laws by imposing duty on persons who direct work to take reasonable steps to prevent bodily harm to workers and public arising from such work Principles of interpretation (p2-8). When interpreting public welfare legislation, certain guiding principles apply – Protective legislation designed to promote public health and safety is to be generously interpreted in manner that is in keeping with purposes and objectives of legislative scheme. Narrow or technical interpretations that would interfere with or frustrate attainment of legislature’s public welfare objectives to be avoided. Accused is entitled to have full and fair notice of the charges and to make full answer and defence to those charges. However, penal legislation, even of public welfare variety, must also be interpreted in manner consistent with procedural rights of accused: Ontario (Ministry of Labour) v Hamilton (City), Ont.C.A. (2002Misleading Advertising under Competition Act– s.52(1) offence: no person shall, for purpose of promoting, directly or indirectly, supply or use of product or for purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material way • sub(1.1) it is not necessary to prove that any person was deceived or misled • Sub (4) general impression conveyed by representation as well as its literal meaning shall be taken into account in determining whether or not it is false or misleading in a material respect • Failure to Comply with Demand under Income Tax Act – requirement to provide documents or information, s.231.2: Minister may, for purpose related to administration or enforcement of Act, require any person to provide, within reasonable period of time as stipulated in notice, (a) any information or additional information, including return of income or supplementary return, or (b) any document Proof & Prosecution Burden of Proof Criminal case (eg fraud): Crown bears burden of proof beyond reasonable doubt: no burden on accused to prove innocence, entitled to acquittal/finding of not guilty where raises reasonable doubt Burden of proof beyond reasonable doubt applies to all elements of offence: mens rea element (mental element/guilty mind/fault) and actus reus (physical element/prohibited act or consequence Elements of Fraud offence to be proven beyond reasonable doubt by Crown: Actus Reus (physical act) 1. prohibited act, be it act of deceit, falsehood or some other fraudulent means, and 2. deprivation caused by the prohibited act, which may consist in actual loss or placing of victim’s pecuniary interests at risk Mens Rea (mental requirement) 1. subjective knowledge of the prohibited act, 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) Regulatory Offences (eg misleading advertising): Presumption of innocence. Crown bears burden of proof of guilt. Elements of offence to be proved depend on category of regulatory offence in question: mens rea; strict liability; absolute liability. Necessity or emergency would be how to defend an absolute liability charge. With absolute liability, you can defend your case but you cant use due diligence. Ie challenge that you even committed the act. Regulatory Offences categories:Mens rea: Crown must prove beyond reasonable doubt both prohibited act (actus reus) and mens rea (guilty mind), as if prosecution for criminal offence, but these remain regulatory offences in nature Strict liability: Crown must prove prohibited act beyond reasonable doubt; onus then shifts to defendant to prove lack of fault by due diligence or reasonable mistaken belief in fact, on civil standard of proof (balance of probabilities/preponderance of doubt) in which case defendant entitled to acquittal Absolute liability: Crown must prove prohibited act beyond a reasonable doubt, no defence of lack of fault may be raised, although there may be other defences, eg., necessity, officially induced error of law, de minimus Regulatory offences presumed to be strict liability Burden of proof for strict liability: - Doing of prohibited act prima facie imports the offence, leaving it open to accused to avoid liability by proving that he/she took all reasonable care - While prosecution must prove beyond reasonable doubt that the defendant committed prohibited act, defendant must only establish on balance or probabilities that he/she has defence of reasonable care - It is not enough just to raise a reasonable doubt when asserting due diligence defence – burden of raising reasonable doubt is not as great as that of establishing due diligence defence - Where defendant relies on defence of due diligence, onus of proof shifts to defendant to establish reasonable care on balance of probabilities – issue is not correctly decided by giving accused benefit of the doubt Misleading Advertising: - Crown must prove beyond reasonable doubt prohibited act, eg., making advertisement that is misleading - Defence has onus to establish on balance of probabilities due diligence or reasonable care, or reasonable mistaken belief of fact - Crown can say: Individual received notice, advertisement was false/misleading, then say how it was false/misleading Failure to Comply with Demand: - Crown must prove beyond reasonable doubt prohibited act, eg., demand made for Income Tax Act information, refusal by defendant to furnish requested information - Defence has onus to establish on balance of probabilities due diligence or reasonable care, or reasonable mistaken belief of fact - Crown can say: show that there was a demand, defendant failed to reply, or he did reply but it was not material Operation of Defence - Due diligence defence must relate to commission of the prohibited act, not some broader notion of acting reasonably. Focus of due diligence test is conduct which was or was not exercised in relation to particular event giving rise to charge, not a more general standard of care - In order to avoid a strict liability conviction the defendant must prove, on a balance of probabilities, “either that he had an honest but mistaken belief in fact which, if true, would render the act innocent, or that he exercised all reasonable care so as to avoid committing the offence”. - It does not suffice to simply act reasonably in the abstract or to take care in the general sense. Innocent good faith, making unintentional errors is not due diligence – defence requires affirmative proof that all reasonable care exercised to ensure errors were not made - There is no onus on prosecution to establish negligence on part of defendant. Crown is not required to disprove due diligence beyond reasonable doubt – otherwise regulatory schemes will not operate effectively. Due diligence is in law converse of negligence Practically speaking, two aspects of defence ultimately converge since to establish reasonableness of mistaken belief an inquiry is necessary to determine whether accused did everything reasonably within his/her power to ascertain true state of affairs. Relationship between mistake of fact and due diligence – both involve question whether accused exercised all reasonable care; to show mistake of fact reasonable, accused must demonstrate he/she took all reasonable steps to ascertain true state of affairs Page 6-73 – corporation charged with selling goods and charging customers monthly without disclosing the aggregate cost. Court concluded that the onus of roving due diligence fell on those who are the directing mind and will of the corporation, whose acts are in law the acts of the corporation itself. It is an error to hold that there is an onus on the Crown to establish the absence of due diligence beyond a reasonable doubt. Evidentiary Threshold - Defence of due diligence will be flawed by unexplained failure to demonstrate what happened, and why, and steps taken to prevent the occurrence - Issue of due diligence and reasonable care mandates practical and evidence-based analysis, rather than unrealistic, speculative approach - Due diligence relied upon must relate to incident in question, otherwise it will not be relevant to time of alleged commission of offence - Assessments of credibility, fact finding, often dispositive of ultimate legal result in considering due diligence defence - Accused charged with failing to comply with conditions of a licence under Fisheries Act - Defendant fails to call evidence or testify on his own behalf - Held, nothing before trial judge as evidentiary proof that offence committed without knowledge or consent of defendant; accused having failed to meet evidentiary burden on him, and on basis of evidence presented by Crown, conviction upheld: R v Forsey, Nfld. Prov. Ct. (1999) Defending the Charge Nature of defence depends on nature of charge & proceedings. For a Criminal Charge, prosecution required to prove prohibited act (actus reus) AND mental element (mens rea) beyond a reasonable doubt. The defendant thus only needs to only raise reasonable doubt. The defendant is presumed innocent, no obligation on defence to lead evidence to raise reasonable doubt Defence for regulatory offences depends on classification of regulatory offence: - Mens rea: much like criminal offence, crown required to prove both prohibited act and mental element; defendant may raise reasonable doubt to be found not guilty - Strict liability: upon proof by crown of prohibited act, onus shifts to defendant to establish, on civil standard of proof on balance of probabilities or preponderance of doubt, that he/she exercised all reasonable care or due diligence, or alternatively reasonably believed in mistaken set of facts which if true rendered act or omission innocent - Absolute liability: upon proof of prohibited act by prosecution, defendant has no defence of lack of fault, but may put forward other defences to raise reasonable doubt. Challenging the prohibited act is the only defence for absolute liability. Full mens rea offence under Criminal Code requires that the accused have an intent to perform the acts that constitute the actus reus of the offence. Since ignorance of the law is no excuse for breaking the law, due diligence consists in taking steps to fulfil a duty imposed by law, and not in ascertaining existence of statutory prohibition or its interpretation. Mistake of fact which negates mental element which is part of definition, express or implied, of offence negatives the offence If requisite mental element required by definition of the offence is lacking, offence is not proved, whether absence of requisite mental element was due to reasonable mistake of fact, or honest although unreasonable mistake of fact. However, where doing of act prima facie imports the offence (eg., strict liability offences), defence of mistake of fact must be reasonable.Accused found in possession of undersized lobsters – his son, member of the crew, hid lobsters on boat; Held, possible that accused did not know his son had hidden the lobsters, finding of not guilty: R v LeBlanc, NBQB (1998) . Defendant chose to operate residential apartment building, obligated to make himself informed as to condition of premises; Held, lack of knowledge is not defence to violations of Public Health Act unless it is found within ambit of due diligence: R v Doz, ABPC (2000) If you can show that you were advised by a government official or someone who has authorization on the statute, was done be an erroneous belief with regards to the official, this is a common law defence of officially induced error of law. Defence is made available to any kind of charge (criminal, regulatory etc.). If judge makes mistake, it’s a mistake of law not a mistake of fact Actus Reus: The difference in scope and meaning of s.11(d) Charter of Rights and Freedoms in regulatory context does not imply that presumption of innocence is meaningless for a regulated accused – Crown must still prove actus reus of regulatory offences beyond a reasonable doubt. Criminal Code, s.8(3); Provincial Offences Act of Ontario, s.80, preserve common law defences, eg., necessity, duress, double jeopardy. If accused did not commit the prohibited act, it follows he is guilty of no offence. Absence of evidence in Crown’s case on any of the elements of the offence entitles the defendant to succeed on judge directing motion for directed verdict of acquittal (“non-suit” motion – defendant not required to be called on to present a defence or not). Where Crown fails to prove prohibited act in manner that is “particularized” in the charge document, defendant entitled to be found not guilty On trial of a regulatory offence where defence of due diligence or reasonable care may be available, defendant bears onus of proof – however burden always remains on Crown at end of trial to have established actus reus of offence beyond a reasonable doubt. Actus reus of a strict liability offence does not include a mental element – to impose obligation on Crown to prove a mental element on a strict liability offence would impede adequate enforcement of public welfare legislation Case Study 1: Bank of Montreal (BM) charged under Bankruptcy Act with unlawfully removing property, truck, from possession of bankrupt, GB, by selling property to JF, without written permission of Trustee. In June, BM loans money to GB, as security takes chattel mortgage on motor vehicle equipment as collateral; in August BM files financing statement in personal property registry claiming security interest in collateral. GB makes assignment in bankruptcy in April of following year, BM notified by trustee shortly after; trustee visits sites where collateral located, BM agrees with trustee to leave collateral at those locations to minimize storage costs. Few weeks later JF learns collateral for sale – he and his father meet with GB, discuss his outstanding loan and collateral with BM; JF borrows amount of outstanding loan from credit union, pays that amount to BM – as result BM sends letter releasing its interest in collateral. On advice of accountant JF returns to BM, obtains receipt for monies paid to BM, receipt refers to “sale of” collateral. JF thinks he has purchased collateral from BM; manner that BM dealt with collateral consistent with a sale; however, manager of BM’s evidence is that it did not sell the collateral but that upon repayment of loan BM merely released its interest in the collateral. After transaction with BM, GB tells JF where collateral was, one truck turned over to JF by GB. Removing or attempting to remove property out of charge or possession of the bankrupt or trustee is actus reus of the offence. Question: Has BM committed the actus of the offence? Case Study 2: D charged with failing to pay wages to R and M, contrary to Minimum Employment Standards Act.R employed as workman by D in his business as a painting contractor, worked for D for 8weeks, paid by hour; at end of work R given cheque (29 June)for $260. drawn on credit union; payment of cheque refused by credit union when R attempts to deposit it at his bank (30 July), no monies ever paid. M also employed by D as painting contractor, receives cheque for $128. (6 July) drawn on same credit union account which is also refused when presented to M’s bank (9 July), no monies ever paid. At time cheques issued, sufficient funds in credit union account to cover them, cheques would have been cashed had they been presented for payment to credit union; no longer sufficient funds as of 11 July. Both R and M offered and accepted cheques from D upon termination of work for him; R does not attempt to cash cheque until 4 weeks later; M attempts to cash it after intervening weekend. Vast majority of employers at time of case pay salaries by cheque, not cash; both cheques would have been honoured had they been presented for payment to credit union where D banked on dates they were issued; however R waits 31 days to attempt to negotiate cheque at his own bank; M deposits cheque at his own bank at earliest opportunity, but does not present it at credit union where cheque drawn Question: Has D committed actus of offence? - Prohibted act has not been proven. They might have a problem should this have gotten to due diligence. At the time of writing the cheques, there were sufficient therefore raising a reasonable doubt. Lower court decision, court of appeal may have reached a different conclusion. - Case Study 3: H operates B’s Lounge (BL), charged with allowing alcohol to be consumed on premises outside of prescribed hours, contrary to Liquor Control Act. BL licence allows sale of alcohol until 3am, consumption of alcohol until 330am. Inspector enters BL from side entrance at 4:10am, sees 3 people standing at bar, 2 of them tale drink from beer bottle. 2 employees of BL testify that when Inspector arrived BL closed, they had not been serving alcohol, main entrances were locked, they did not allow anyone to enter – not unusual for them to allow customers who were waiting for ride to remain on premises while they were cleaning up, which usually takes an hour. One employee testifies that patrons on premises sometimes drank from empties that had not yet been picked up.Owner not present that evening but H testifies that her employees had clear instructions to ensure alcohol not sold or consumed after serving hours had ended. Questions: (1) Has actus been proven? (2) If actus is proven, would due diligence defence succeed? Example of vicarious liability. The employees didn’t allow the patrons to consume alcohol. They took reasonable care to ensure this didn’t occur. Entrances were locked, they didn’t allow anyone to enter and they were in the process of putting the bottles away. The owner also provided instructions, the mere fact that it was possible to sneak into the lounge and drink from bottles that weren’t put away does not show a lack of reasonable care. Thus the judge was satisfied that the crown has failed to establish actus reus and the accused raises a successful due diligence defence. **allow or permit are classic terms for strict liability -> therefore defence of due diligence immediately Going to Trial In a criminal trial, the Crown leads evidence in case in chief. Evidence to address elements of offence: prohibited act (actus reus) and mental element (mens rea). In fraud cases the key elements are dishonest and deprivation. Standard proof at criminal trial is proof beyond a reasonable doubt (95%).The accused is presumed not guilty, no burden on defendant to demonstrate that not guilty but they are entitled to benefit of doubt. The accused must be found not guilty even if court is suspicious of accused’s conduct, knowledge or even thinks guilt likely or prove on civil standard that accused guilty. Considerations for Defendant at Criminal Trial: - Raising doubt in prosecution’s evidence so no need to call defence - What is theory of defence – how would you establish it? - If defence to be called, who are witnesses to be called? - Should accused testify in own defence? If so entitled to be cross-examined by crown; previous inconsistent statements? Prior criminal record? Regulatory Offences Trial Crown bears burden of proof beyond reasonable doubt. The accused is still presumed not guilty. Type of regulatory offence means different nature of defence that applies, but in all cases Crown must prove prohibited act beyond reasonable doubt. If doubt as to proof of actus, accused entitled to acquittal Elements of offence depend on nature of regulatory offence: - Mens rea offence requires proof beyond reasonable doubt of both prohibited act and mental element, much like criminal offence - Strict liability offence requires defendant to establish due diligence or reasonable mistake of fact, on standard of balance of probabilities, upon proof by prosecution of prohibited act - Absolute liability offence requires defendant to advance defence other than lack of fault once prosecutor proves prohibited act For Strict liability offences, which is what regulatory offences are presumed to be, relevant factors in due diligence may include (page 7-19): - Knowledge of problems. The actus reus of a strict liability offence does not include a mental element. To impose an obligation on the Crown to prove a mental element on a strict liability offence would impede the adequate enforcement of public welfare legislation. Hence the defendant’s lack of knowledge of a hazard in its workplace is relevant only in due diligence. - Practices of the particular industry. A defendant cannot hide behind commonly ccepted standards of care if in the circumstances, due diligence warrants a higher level of care. (death of
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