





CITATION:
R. v. Must, 2011
          ONCA 390



DATE: 20110519



DOCKET: C52319



COURT OF APPEAL FOR ONTARIO



Rosenberg, Lang and Watt JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Robert Must



Appellant



Mark
Halfyard
, for the appellant



Peter
Scrutton
, for the respondent



Heard: May 17, 2011



On appeal from conviction entered by Justice John Macdonald of
          the Superior Court of Justice dated, December 18, 2009.



ENDORSEMENT



[1]

The appellant appeals his conviction for fraud by
    Macdonald J. on the basis that the trial judge erred in failing to find that
    the appellant had a colour of right defence to the charge.  For the following reasons, the appeal is
    dismissed.

[2]

The trial judge rejected the appellants primary
    position that his contract with
iGate
was still in effect
    and that he was entitled to continue to receive payments under the
    contract.  He also found that the
    appellant forged the signature of the client on the time sheets in order to
    obtain the payments, to which he was not legally entitled.  The trial judge did, however, accept that the
    appellant honestly believed that
iGate
was liable to
    him in damages for breach of contract because they did not terminate the
    contract by written notice in accordance with its terms.  We agree with the trial judge that this
    belief did not give the appellant a defence.

[3]

To succeed, the appellant must show that the facts as
    found by the trial judge negative the
mens

rea
for fraud.  Those facts do not negative the
mens

rea
; to the contrary they show that the appellant had
    the requisite
mens

rea
.
The
mens

rea
for fraud has been authoritatively
    determined in
R. v.
Théroux
,
    [1993] 2 S.C.R. 5 at
para
. 24:

Having ventured these general comments on
mens

rea
, I return
    to the offence of fraud. The prohibited act is deceit, falsehood, or some other
    dishonest act. The prohibited consequence is depriving another of what is or
    should be his, which may, as we have seen, consist in merely placing another's
    property at risk.
The
mens

rea
would then consist in the subjective awareness
    that one was undertaking a prohibited act (the deceit, falsehood or other
    dishonest act) which could cause deprivation in the sense of depriving another
    of property or putting that property at risk. If this is shown, the crime is
    complete. The fact that the accused may have hoped the deprivation would not
    take place, or may have felt there was nothing wrong with what he or she was
    doing, provides no defence
. To put it another way, following the
    traditional criminal law principle that the mental state necessary to the
    offence must be determined by reference to the external acts which constitute
    the
actus
of the offence (see Williams,
supra
, c. 3),
the proper focus in determining the
mens

rea
of fraud is to ask whether the accused intentionally
    committed the prohibited acts (deceit, falsehood, or other dishonest act)
    knowing or desiring the consequences proscribed by the offence (deprivation,
    including the risk of deprivation). The personal feeling of the accused about
    the morality or honesty of the act or its consequences is no more relevant to
    the analysis than is the
accused's
awareness that the
    particular acts undertaken constitute a criminal offence
.  [Emphasis added.]

[4]

On the findings of fact, the appellant was aware that
    he was undertaking a prohibited act, namely the deceit in forging the time
    sheets, which could cause a risk of deprivation in the sense of depriving
iGate
of its property.  The
accuseds
personal belief of entitlement
    to damages for breach of contract did not negative the
mens

rea
.  That belief falls within the statement in
Théroux
:  The personal feeling of the accused about
    the morality or honesty of the act or its consequences is no more relevant to
    the analysis than is the
accused's
awareness that the
    particular acts undertaken constitute a criminal offence.  The knowledge of risk of deprivation is found
    in the trial judges finding that the appellant, unilaterally determined that
    his entitlement would be full payment for the time from January 6
th
to March 23
rd
, 2006, without affording [
iGate
]
    from whom he sought payment the opportunity either to scrutinize the amount he
    sought or the period of claimed entitlement, or to dispute his claims.

[5]

Accordingly, the appeal is dismissed.


Signed: M. Rosenberg J.A.

S.
    E. Lang J.A.

David
    Watt J.A.


