



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leclair, 2020 ONCA 230

DATE: 20200519

DOCKET: C66523

Hoy A.C.J.O., Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jean-Paul Leclair

Respondent

David Friesen, for the appellant

Howard L. Krongold, for the respondent

Heard: March 12, 2020

On appeal from the acquittal entered by
    Justice Hugh R. McLean of the Superior Court of Justice, dated January 17, 2019.

REASONS FOR DECISION

[1]

The respondent was acquitted of three counts of fraud over $5000.
    The Crown appeals his acquittal in relation to the first count, which involved
    the construction of an arena in Edmonton. It argues that the trial judge erred
    in law in his approach to the
mens rea
for
    fraud.

[2]

The respondent was hired by Hendrix Hotel and Restaurant Equipment
    Supplies Ltd. (Hendrix) to build and install refrigeration units for the
    arena. He submitted an initial invoice for what the trial judge characterized
    as a deposit. He admitted he subsequently lied to Hendrix about his progress
    and then submitted further invoices, although his evidence was that the last
    two invoices were submitted in error. His business was facing cash flow
    problems and he used amounts paid by Hendrix to fund other projects. He was
    hoping that one of these projects would generate the funds necessary for him to
    stay on schedule for the arena job, but it did not. The trial judge found that
    the Crown had not satisfied the
mens rea
requirement because the
    respondent felt that he could get himself out of this situation.

[3]

R
.
v. Théroux
,
[1993] 2 S.C.R. 5, makes clear, at p.
    20, that the
mens rea
of fraud is established by proof of:

1.

subjective knowledge of the prohibited act, be it an act of deceit, a
    falsehood or some other fraudulent means; 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 victims pecuniary interests are put at risk).

[4]

As McLachlin J. wrote, at pp. 23-24, a person cannot escape criminal
    responsibility because of a sanguine belief that all will come out right in
    the end. Many frauds are perpetrated by peoplewho sincerely believe that their
    act of placing other peoples property at risk will not ultimately result in
    actual loss to those persons.

[5]

The respondent properly concedes that the trial judge erred in law in
    his approach to the
mens rea
for fraud. However, the respondent argues
    that the Crown seeks to overturn the acquittal based on a different theory of
    guilt than what he says is the narrow basis it chose to advance at trial.

[6]

As the respondent argues, the Crown is barred from securing a new trial
    based on a new theory of liability out of concerns over fairness to the accused
    and the principle against double jeopardy enshrined in s. 11(h) of the
Canadian Charter of Rights and Freedoms
:
R. v.
    Barton
, 2019 SCC 33, 435 D.L.R. (4th) 191, at para. 47. But we are not
    persuaded that the Crown seeks to advance a different theory of guilt.

[7]

A review of the submissions as a whole indicates
    that both counsel tried to convey the correct approach to the
mens rea
for fraud, but had great difficulty in doing so because of the manner in which
    the trial judge was directing the discussion. The exchange between the trial
    judge and the Crown at the end of the submissions

suggests
    that the Crown invited the trial judge to acquit if he had a reasonable doubt
    that the respondent knew that he could not complete the Hendrix contract on
    schedule. We do not think that this is a fair reading of the Crowns
    submissions as a whole given her attempts throughout her submissions to
    articulate the correct approach.  We are satisfied that
the Crown endeavoured to convey the correct approach to the
mens rea
for fraud to the trial judge, including that being hopeful that he could
    follow through on the project would not permit the respondent to evade criminal
    liability, and that subjective knowledge of a risk of deprivation is
    sufficient.


[8]

To set aside an acquittal, the burden is on the Crown to satisfy the
    court to a reasonable degree of certainty that, but for the trial judges
    error, the verdict would not necessarily have been the same:
R. v. Graveline
,
2006 SCC 16, [2016] 1 S.C.R.
    609, at paras. 14-16;
R. v. Button
,
2019
    ONCA 1024, at paras. 15-16. On these facts, we are satisfied to a reasonable
    degree of certainty that, had the trial judge not erred in his approach to the
mens rea
,
he would not necessarily have
    acquitted.

[9]

While the Crown submits that this court should enter a
    conviction, we decline to do so because we are not persuaded that the factual
    findings of the trial judge support a conviction beyond a reasonable doubt:
R. v. Katigbak
,
2011 SCC 48, [2011] 3 S.C.R. 326,
    at paras. 50-52;
R. v. McRae
,
2013 SCC 68, [2013] 3 S.C.R. 931, at para. 39
.
    The power to substitute an acquittal for a conviction should only be used in
    the clearest of cases, and here, the trial judge made no clear factual findings
    about the respondents subjective knowledge of the risk of deprivation.

[10]

Accordingly, the appeal is allowed, and a new trial on the
    first count is ordered.


Alexandra Hoy A.C.J.O.

I.V.B. Nordheimer J.A.

Harvison Young J.A.


