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R. v. Théroux, [1993] 2 S.C.R. 5

Facts:

T was business man. Sold homes to buyers. Claimed had insurance program. Made false representations that the deposits were insured. House not built. People didn’t get deposits back

Issue(s):

Does the fact that T honestly believed the houses would be completed negate the mens rea of the offence?

Ratio:

Elements of Actus Reus of Fraud (s.308(1)) : dishonest act and deprivation (Olan)
**Deprivation of money, security, or property (also imperiling of is sufficient)
***Established by proof of loss, prejudice, or risk of prejudice
**Dishonest act by:
***Deceit
***Falsehood
***Other fraudulent means (Whether reasonable person thinks act is dishonest) – objective standard

Elements of Mens Rea of Fraud
**Accused knowingly undertook the act which constitutes the falsehood, deceit, or other fraudulent means (subjective knowledge of dishonest act), AND
**The accused was aware that the deprivation could result from such conduct (element of risk) (subjective knowledge of deprivation of another)

Analysis:

For fraud by deceit or falsehood – all that need be determined is whether the accused, as a matter of fact, represented that a situation was of a certain character, when, in reality, it was not.

Test for Mens Rea is Subjective
**Whether the accused subjectively appreciated those consequences at least as a possibility (looks to intention and facts as the accused believed them to be)

T believed that no such risk would materialize – he thought the houses would be built
o**But he told them something he knew to be false, he knew his act was depriving them of insurance protection

Holding:

T was guilty of fraud

Comments:

Subjective Mens Rea
1. Knowingly
2. Recklessness
3. Wilful blindness

Actus Reus – (wrongful act or forbidden consequence)
1. Simultaneity
2. Voluntary
3. Causation


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