2013 QCCA 2068, 2013 QCCA 2068

Unofficial English Translation Cormier c. R. 2013 QCCA 2068 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002779-127 (150-01-022391-081) DATE: December 2, 2013 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. LORNE GIROUX, J.A. GUY GAGNON, J.A. JEAN-PAUL CORMIER APPELANT – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] THE COURT – On the appeal from a judgment of the Court of Quebec, District of Chicoutimi (the Honourable Judge Micheline Paradis), rendered on January 27, 2012, that convicted the appellant of theft (sections 334(

a) and 322 Cr. C. ) and fraud (paragraph 380(1)(

a) Cr. C. ) relating to computer data belonging to the Commission scolaire de Jonquière [“Jonquière School Board”]; [ 2 ] For the reasons of Chamberland, J.A., with which Giroux and Gagnon, JJ.A. agree, and for the reasons of Gagnon, J.A., with which Giroux, J.A. agrees, with respect to the nature of the object that was the subject of the theft charge; [ 3 ] ALLOWS the appeal; [ 4 ] QUASHES the judgment under appeal; [ 5 ] SETS ASIDE the appellant's convictions; and [ 6 ] ACQUITS the appellant of the two charges of theft and fraud laid against him. JACQUES CHAMBERLAND, J.A. LORNE GIROUX, J.A. GUY GAGNON, J.A.

Mtre Yves Desaulniers DESAULNIERS, ATTORNEYS For the appellant Mtre Jean-Sébastien Lebel CRIMINAL AND PENAL PROSECUTOR For the respondent Date of hearing: September 12, 2013

REASONS OF CHAMBERLAND, J.A. [ 7 ] The appellant appeals from a judgment of the Court of Quebec rendered on January 27, 2012, by the Honourable Judge Micheline Paradis, convicting him of the two following offences: [1] [ translation ] 1. Between October 5, 2005, and October 20, 2005, in Saguenay (Jonquière), District of Chicoutimi, did commit the theft of computer data concerning a project to be presented to clients who represent to the owner of the data, the Jonquière School Board (Business Service Centre, Réjean Couture), an economic value exceeding $5,000, thereby committing the indictable offence set out under sections 334 (

a) and 322 of the Criminal Code . 2. Between October 5, 2005, and October 20, 2005, in Saguenay (Jonquière), District of Chicoutimi, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence, did defraud computer data concerning a project to be presented to clients who represent to the owner of the data, the Jonquière School Board (Business Service Centre, Mr. Réjean Couture), an economic value exceeding $5,000, thereby committing the indictable offence set out under section 380(1) (

a) of the Criminal Code . [ 8 ] A bit of background is required before going any further. The Facts [ 9 ] The appellant worked for over thirty years for the Jonquière School Board, first as a physical education teacher, then as an advisor and manager in human resources. [ 10 ] He participated in setting up an intervention program called "Le fil d'Ariane" to fight the problem of absenteeism at work by focusing on employees’ quality of life and supporting employees who are returning to work.

The appellant, it bears mention, was at the core of this project; he was, in fact, its main instigator. [ 11 ] In September of 2002, the appellant was transfered to the School Board's Business Service Centre (the "Centre"), organizational development division. He put the finishing touches on the intervention program, working with a team that included four other employees.

He was in charge of commercializing the project by preparing marketing plans and approaching potential clients, among other things. [ 12 ] The appellant was paid a salary by the School Board until the end of 2003, and then, starting in January of 2004, he was paid as a consultant on an hourly basis through a company he started, Équinoxe PNT reg’d. The method by which he received payment was the only change in January of 2004.

His tasks remained the same, the team he worked with remained the same, and when it came to incidental work expenses (travel and meal expenses), he remained subject to the school board's policies. [ 13 ] In April of 2004, the Centre obtained a contract from Alcan in Alma.

It was a big contract, known as USA 052 and spanning 97 weeks, for an anticipated total of $191,540. [ 14 ] The appellant was closely associated with this contract until the Centre terminated his employment on November 28, 2005, in the circumstances that I will now describe. [ 15 ] To make a long story short, the appellant's departure brought about the immediate termination of the Alcan contract. [ 16 ] At some point in the fall of 2005, the appellant, who was thinking of leaving the Centre but staying involved in human resources, met with Sylvie Desmarais, Director of Human Resources at the Louis-H.

Lafontaine Hospital in Montreal. He told her about his plan to start up a project to manage work attendance. It would be based on the Fil d'Ariane, on which he told her he worked with the Jonquière School Board, but he intended to implement his project in the Montreal area through his company Equinoxe PNT. [ 17 ] I would immediately add that the Louis-H Lafontaine Hospital was not a client of the Centre at the time, or even a prospective client.

In fact, the Centre did not have any clients in Montreal and developing this market was not part of its plan at the time. [ 18 ] The appellant took advantage of his meeting with Desmarais to give her a few documents so that she could see what services he would soon be able to offer her. [ 19 ] There was a second meeting a few weeks later. It did not, however, lead to the appellant and the hospital entering into a contract. [ 20 ] In October, the persons in charge of the Centre were made aware of two articles published in two newspapers in Quebec City and Montreal regarding the Le Fil D'Ariane project.

The articles were the result of a meeting between a journalist and the appellant, and referred to the project as “Le Fil de Jean-Paul”. The persons in charge of the Centre were offended by the fact that the appellant had taken sole credit for the creation of this project without any reference to his team. [ 21 ] According to the persons in charge of the Centre, the publication of these articles coincided with their clients' declining interest in Le Fil d'Ariane.

[ 22 ] That was all it took for an internal investigation to be launched and a private investigator to be hired. [ 23 ] The hard drive of the appellant's work computer was copied onto CD. The persons in charge of the Centre noticed that some of the Centre's files had been transfered to the appellant's personal email. They were convinced that the appellant intended to go into business using the fruit of the labour performed at the Centre for his own personal gain.

According to the persons in charge of the Centre, this situation was unacceptable. [ 24 ] On November 28, 2005, the Centre ended its business relationship with the appellant on the ground that the bond of trust had been broken. [ 25 ] In February of 2006, Julie Labbé, the organizational development project manager for the Centre, met with Desmarais.

Desmarais handed over all the documents she had received from the appellant during their first meeting, as well as a copy of the email exchanges that had since taken place. [ 26 ] Charges for the theft and fraud of [ translation ] "computer data concerning a project to be presented to clients who represent to the owner, the Jonquière School Board (Business Service Centre, Réjean Couture)" were filed in 2008, and the trial was held in December of 2010 and September of 2011. [ 27 ] The appellant did not testify at his trial on the two counts of theft of computer data and fraud described in the first paragraph of these reasons. [ 28 ] At trial, the judge declared the copy of the CD from the hard drive of the appellant's work computer to be inadmissible. [ 29 ] The judgment under appeal was rendered on January 27, 2012.

JUDGMENT UNDER APPEAL [ 30 ] The trial judge described as follows the documents that the appellant gave Desmarais during their meeting in the fall of 2005 and that Desmarais in turn handed over to Labbé during their meeting in February of 2006: Filed as exhibit P-33 - A first document entitled [ translation ] "Steps and means to ease the transition in times of change", which explained the Fil d'Ariane project and bore the School Board's logo.

Another School Board document presenting the process was attached to this one; - A second document entitled [ translation ] "Becoming a learning organization, presentation of innovative project Le Fil d'Ariane / Managing school attendance, statistical study of wage-loss benefits, and so on", dated April 24, 2005. This is a study that was carried out by four students at the Hautes Études Commerciales business school in Montreal; - A third document [ translation ] "Managing workplace attendance in schools", from the Fédération des commissions scolaires du Québec.

Filed as exhibit P-34 - A four-page document, printed front and back, created by the Centre to finalize and structure the Le Fil d'Ariane, to better support organizations. Filed as exhibit P-35 - A first document from the Fondation des maladies mentales regarding the increase in workplace mental illnesses; - A second document from the Seigneurerie des Mille-Îles School Board (one of the Centre's clients) informing its personnel of the launch of Le Fil d'Ariane. Filed as exhibit P-36 - The content of a course set up by the Centre's team to train managers who are in positions of authority.

Filed as exhibit P-37 - Ten emails exchanged with the appellant in 2005, outside the dates stated in the indictments. [ 31 ] The judge then recalled the elements of the offence of fraud (s. 380 Cr. C. ), relying on the teachings of the Supreme Court in R v. Zlatic . [2] She briefly touched upon the presumption of innocence, the burden of proof in criminal matters, and the analytical framework set forth by the Supreme Court in R v.

W.(D.) . [3] [ 32 ] The judge accepted evidence that the appellant [ translation ] "took" documents that were created and improved by the Centre's team and used them to solicit sales, while he was working there as a consultant.

The appellant then used these documents for personal purposes to obtain contracts in the Montreal area, without the Centre's authorization or knowledge. [ 33 ] The judge also found that the School Board and the Centre had proved that they had suffered a certain financial loss since the Centre self-finances through the sale of its products and programs, which include the Fil d'Ariane. [ 34 ] The trial judge deemed that the intent [ translation ] "appeared clearly" from the appellant's actions. He [ translation ] "misappropriated" documents that did not belong to him and offered them to other potential clients.

[ 35 ] On August, 17, 2012, the appellant was sentenced to a conditional sentence of ten months. Grounds for Appeal [ 36 ] The appellant raises the following three grounds of appeal: 1. In her analysis of the constitutive elements of the offences, the trial judge erred in law by failing to take into consideration certain pieces of evidence that were favourable to the appellant. 2.

The trial judge erred in law by failing to consider the essential elements required to prove the two charges and by convicting the appellant without evidence establishing, inter alia , that the impugned acts were, respectively, theft and fraud committed at the times and places indicated in the indictment. 3.

The trial judge erred in law by convicting the appellant when a properly instructed judge could not reasonably have reached this conclusion considering the overall evidence adduced at trial. [ 37 ] Under his first ground of appeal, the appellant argues that no evidence was tendered for several of the constitutive elements of the offences of computer data theft and fraud. First, the contents of his work computer's hard drive were declared inadmissible in evidence following a voir-dire. There is also a dearth of evidence respecting the time and place at which the alleged offences occurred.

He thus argues that the prosecution relied on indirect evidence (the

summary of his meeting with Desmarais) that is not closely related to the elements of the charges as drafted. The appellant further points out that there was no legal restriction prohibiting him from being in possession of the documents he authored in whole or in part.

In his view, the judge should have analyzed the evidence by taking into account the lack of evidence on certain elements and its weaknesses and given the appellant the benefit of reasonable doubt. [ 38 ] For his second ground of appeal, the appellant argues that he should not have been convicted because of the evidence showing he had colour of right, or even a clear right, in his favour. To convict him, the trial judge would have needed evidence beyond a reasonable doubt that he had no property rights, and therefore no copyright, in the documents at issue.

He explains that as a consultant rather than an employee, he was the leader of the group that produced the documents in question. He therefore had copyright in these documents. This copyright was in no way assigned to the other contracting party. The existence of this copyright makes it impossible for him to have had the requisite mens rea .

Consequently, convicting him of these two charges was tantamount to criminalizing lack of loyalty or unfair competition. [ 39 ] As for the third ground of appeal, the appellant submits that a properly instructed judge could not reasonably have convicted him on the basis of the evidence adduced at trial as a whole. [ 40 ] With respect to the first ground of appeal, the respondent explains that the only possible conclusion is that the documents presented by the appellant during his meeting with the hospital's director of human resources was the printed copy of computer data transferred from his work computer to his personal inbox.

Given that the indictments are drafted to state that the data concerns a project to be presented to clients, the respondent explains that it is the project itself, and the purpose and use the appellant made of it in particular, rather than its nature as computerized data, that is at issue.

The respondent also argues that the date of the offences is not an essential element of the offence since there was never any question of alibi or prescription. [ 41 ] As for the second ground of appeal, the respondent opines that it is not necessary to decide the question of the documents' ownership under the Copyright Act in the context of a criminal case, since that would be like deciding a civil dispute during a criminal trial. The respondent recalls that it is the fact that the appellant took the project for personal purposes that is at issue here, not the rights conferred by the Copyright Act .

Furthermore, the respondent explains that ownership of a good does not necessarily protect the appellant from criminal prosecution, since it remains possible for an owner to be guilty of fraud if he uses his own good in such a way as to deprive a third party. Finally, the respondent argues that the project did not belong to the appellant because the evidence demonstrates that it was created by a work team. Thus, according to the respondent, the appellant's criminal conduct was taking documents that did not belong to him and using them for personal purposes.

For a reasonable person placed in the same circumstances, this constitutes a dishonest act. Analysis [ 42 ] The grounds of appeal submitted cast a wide net, one that is too wide at times. I will therefore quickly address the arguments that, in the context of this file, do not in my view warrant that we consider them in any great depth. [ 43 ] I refer to the argument that the trial judge's refusal to admit into evidence a CD copy of the work computer's hard drive sealed the outcome of the two charges because the Crown was unable to establish that there had been theft of computer data and fraud.

I find that the CD was not essential to prove this. Clearly, the documents obtained from Desmarais and adduced into evidence, documents which the appellant used – albeit unsuccessfully – to convince the Louis-H. Lafontaine Hospital to do business with him, were printed from the computer data identified in the indictment. The provenance of the documents given by the appellant to Desmarais, and then by Desmarais to Labbé, is not at issue. [ 44 ] The same applies to the place the offences were committed, as stated in the indictment. I do not believe there is any reason to intervene here.

The appellant's office was in Saguenay, as was the computer from which computer files were transferred by email. If the transfer constitutes theft in the circumstances of the case, it occurred in Saguenay. As for fraud, while it is true that the steps the appellant took with Desmarais occurred in Montreal, the fact remains that the documents that were handed over during this meeting come from computer data originally hosted on the appellant's work computer in Saguenay.

In short, even though the place of the offences is not perfectly obvious, this is not, in my view, determinative here since it is the very nature of computer data to be easily moved and used anywhere. The appellant did not show how this might have misled him with respect to his defence or caused him any harm whatsoever. [ 45 ] The same can be said regarding the date of the offences. The indictment states that they occurred between October 5 and

October 20, 2005. The appellant maintains that, according to the evidence, they took place in November or December, based on Desmarais's very vague testimony regarding dates. It is clear, however, that this could not have been the case. The offences could not have occurred in December since the Centre terminated the appellant's contract on November 28, 2005. They could not have occurred in November either, since one of the factors that triggered the internal investigation was the articles on the Fil d'Ariane, which were published on October 8 and 15, 2005.

The Crown is correct in stating that the date is not an essential element of the offences in this case since there was never any question of the appellant’s alibi or prescription. Finally, even though the date in the indictments does not correspond exactly to the actual date of the offences, the appellant has not convinced me that this might have misled him with respect to his defence or caused him any harm whatsoever. [ 46 ] I will now analyze the other grounds of appeal, while noting in passing that, throughout the file, there has been a significant shift with respect to the object of the offences.

As we saw previously, the indictments cover the [ translation ] "computer data concerning a project that was to be presented to clients who had, to the owner the Jonquière School Board". The trial judge referred instead to a [ translation ] "theft of documents" and to a [ translation ] "fraud committed through the said documents"; [4] thus, the appellant [ translation ] "took" [5] documents or he [ translation ] "flat-out misappropriated them". [6] In its factum, the Crown now refers to the theft of [ translation ] "a project" and fraud regarding this project, not merely computer data or documents.

This shift is not without significance in light of the specific charges brought against the appellant, as we will see. Theft (s. 322 Cr. C.) [ 47 ] The offence of theft is set out in

section 322 Cr. C. :

(1) Commet un vol quiconque prend frauduleusement et sans apparence de droit, ou détourne à son propre usage ou à l’usage d’une autre personne, frauduleusement et sans apparence de droit, une chose quelconque, animée ou inanimée, avec l’intention :

a) soit de priver, temporairement ou absolument, son propriétaire, ou une personne y ayant un droit de propriété spécial ou un intérêt spécial, de cette chose ou de son droit ou intérêt dans cette chose;

b) soit de la mettre en gage ou de la déposer en garantie;

c) soit de s’en dessaisir à une condition, pour son retour, que celui qui s’en dessaisit peut être incapable de remplir;

d) soit d’agir à son égard de telle manière qu’il soit impossible de la remettre dans l’état où elle était au moment où elle a été prise ou détournée;

(2) Un individu commet un vol quand, avec l’intention de voler une chose, il la déplace ou fait en sorte qu’elle se déplace, ou la fait déplacer, ou commence à la rendre amovible.

(3) La prise ou le détournement d’une chose peut être entaché de fraude, même si la prise ou le détournement a lieu ouvertement ou sans tentative de dissimulation.

(4) Est sans conséquence, pour l’application de la présente loi, la question de savoir si une chose qui fait l’objet d’un détournement est soustraite en vue d’un détournement ou si elle est alors en la possession légitime de la personne qui la détourne.

(5) Pour l’application du présent article, une personne qui a une créature sauvage vivante en captivité est réputée avoir un droit spécial de propriété ou un intérêt spécial dans cette créature pendant que celle-ci est en captivité et après qu’elle s’est échappée de captivité. 322.

(1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent: (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it; (

b) to pledge it or deposit it as security; (

c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or (

d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.

(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.

(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.

(5) For the purposes of this section, a person who has a wild living creature in captivity shall be deemed to have a special property or interest in it while it is in captivity and after it has escaped from captivity. [ 48 ] In this case, I reiterate, the appellant was charged with the theft of computer data concerning [ translation ] "a project" to be presented to clients and belonging to the Jonquière School Board. [ 49 ] In R. v.

Stewart , [7] the Supreme Court considered whether taking confidential information without authorization by copying the document in which this information is found or by memorizing the content of the said document could be considered theft. Lamer J. (as he was then) wrote the reasons for a unanimous bench. He answered in the negative, explaining that, as a matter of policy, it is best to

altogether exclude confidential information, including industrial secrets (which constitute a particular type of confidential information), from the realm of theft. [8] [ 50 ] At the end of his reasoning on theft, Lamer J. writes: [9] To summarize in a schematic way: "anything" is not restricted to tangibles, but includes intangibles. To be the subject of theft it must, however: 1. be property of some sort; 2. be property capable of being (

a) taken – therefore intangibles are excluded; or (

b) converted – and may be an intangible; (

c) taken or converted in a way that deprives the owner of his proprietary interest in some way. Confidential information should not be, for policy reasons, considered as property by the courts for the purposes of the law of theft. In any event, were it considered such, it is not capable of being taken as only tangibles can be taken. It cannot be converted, not because it is an intangible, but because, save very exceptional far-fetched circumstances, the owner would never be deprived of it. [ 51 ] The first condition provides that the "anything" must be property, that is, it must be subject to ownership.

Indeed, it can only be stolen if it belongs, in one way or another, to the victim. Moreover, it is not enough for the accused to show some right in the property to exculpate himself since a person [ translation ] "who has a right in the thing taken steals this thing if he or she takes it from another person who also has a right or a special interest in this thing". [10] [ 52 ] In my view, it would be wrong to accept the appellant's argument that he could not be convicted of theft because he owns the data under some copyright.

First, in the context of a criminal trial, it is clear that whether a thing can be subject to ownership rights must ultimately be decided according to criminal law, not civil law. [11] It is therefore neither necessary nor useful to refer to the Copyright Act to decide this issue. It seems clear to me here that the Centre has some form of proprietary interest in the computer data regarding Fil d'Ariane and the fact that the appellant contributed to it – even in large part – as an employee and then a consultant changes nothing.

Also, even if it were necessary to refer to civil law to determine the ownership of the computer data, it seems to me, at first glance, that the appellant does not meet all the criteria set out in the Copyright Act to be considered its sole owner. Subsection 13(3) of that statute provides that, contrary to the general rule that the author of a work is the first owner of the copyright, the employer is the first owner over work made by an employee in the course of his or her employment, subject to an agreement to the contrary, which is not the case here.

Nor is it clear that the fact that the appellant became a consultant at the time of the events changes anything at all in this situation.

Indeed, if the only thing that changed when he became a consultant was the manner in which he was paid for his services, it is far from certain that he meets the criteria of control or the integration of the work into the employer's business, or the various tests developed on the subject by case law in labour or tax law. [12] Finally, nobody is disputing the fact that Le Fil d'Ariane – at least while it was being developed, which was the state of that project in the fall of 2005 – was the product of team work, not of the appellant's work alone. [ 53 ] The second condition for theft is for the property to be "taken" or "converted" with the intent to deprive the victim, the School Board in this case.

Intangibles like computer data can only be "converted"; they cannot be "taken" since they do not exist physically. [13] There can therefore be no theft if the thing cannot be taken or converted, thereby leading to a deprivation for the victim. [14] [ 54 ] As Lamer J. points out in Stewart , with respect to confidential information, the owner cannot be deprived of it "save [in] very exceptional far-fetched circumstances". In this case, the School Board kept its computer files at all times and was never deprived of them.

There can therefore be no theft. [ 55 ] With respect for the trial judge, it appears that she erred when she based her reasoning on R. v. Desroches . [15] In that case, when the accused left his job, he physically took several documents prepared by his colleagues, of which there were no other copies in the business. The Court therefore took into account the value-added work done to transform the raw materials, the sheets of paper, to find that the appellant had stolen more than paper, as the victim was thus deprived of a thing and the usefulness that it was entitled to enjoy.

Conversely, in Stewart , the accused had merely copied the confidential information rather than taking the documents on which the information in question was written. There was no taking or conversion and no possible deprivation. There was, therefore, no theft. [ 56 ] This corresponds closely to the paradox raised by authors Gagné and Rainville, even though, in their treatise, the authors discuss confidential information. [ translation ] The present state of the law is characterized by its lack of consistency. Individuals who memorize a confidential document are safe from criminal prosecution.

Those who take the document and the confidential information must, on the contrary, answer for their deeds on a criminal level.

It is therefore the confidential information that is really and truly criminally protected: the amount of the theft is not limited to the value of the paper taken, but the value of the information itself, according to Desroches . [16] [Citations omitted.] [ 57 ] The fact that the computer data has a commercial value for the Centre, which the trial judge pointed out in her judgment (at paragraph 315), does not change the reasoning with respect to the need for the Crown to prove all the essential elements of theft. To this day, the Centre has access to the computer data.

It was not deprived of the information and a theft was not committed. [ 58 ] The trial judge's comment does not justify the appellant's conviction for theft, but it is in line with a sentiment expressed by

Lamer J. in Stewart : [17] I am of the view that, given recent technological developments, confidential information, and in some instances, information of a commercial value, is in need of some protection through our criminal law. Be that as it may, in my opinion, the extent to which this should be done and the manner in which it should be done are best left to be determined by Parliament rather than by the courts. [ 59 ] Parliament has since acted, and offences have been added to take into account technological developments [18] in the intervening decades, but in this case, the theft charge was brought under

section 322 Cr. C. [ 60 ] In addition, as I will indicate further on, the appellant did not act "fraudulently", as required under

section 322 Cr. C . [ 61 ] I would therefore quash the judgment under appeal, set aside the conviction on the theft charge, and substitute an acquittal. Fraud (s. 380 Cr. C.) [ 62 ] The offence of fraud is described as follows in

section 380 Cr. C .: 380.

(1) Quiconque, par supercherie, mensonge ou autre moyen dolosif, constituant ou non un faux semblant au sens de la présente loi, frustre le public ou toute personne, déterminée ou non, de quelque bien, service, argent ou valeur : 380.

(1) Every one 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 any person, whether ascertained or not, of any property, money or valuable security or any service,

a) est coupable d’un acte criminel et passible d’un emprisonnement maximal de quatorze ans, si l’objet de l’infraction est un

titre testamentaire ou si la valeur de l’objet de l’infraction dépasse cinq mille dollars; (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

b) est coupable : (

i) soit d’un acte criminel et passible d’un emprisonnement maximal de deux ans, (ii) soit d’une infraction punissable sur déclaration de culpabilité par procédure

sommaire, si la valeur de l’objet de l’infraction ne dépasse pas cinq mille dollars. (

b) is guilty (

i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on

summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars.

(1.1) Le tribunal qui détermine la peine à infliger à une personne qui, après avoir été poursuivie par acte d’accusation, est déclarée coupable d’une ou de plusieurs infractions prévues au paragraphe (1) est tenu de lui infliger une peine minimale d’emprisonnement de deux ans si la valeur totale de l’objet des infractions en cause dépasse un million de dollars.

(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.

(2) Est coupable d’un acte criminel et passible d’un emprisonnement maximal de quatorze ans quiconque, par supercherie, mensonge ou autre moyen dolosif, constituant ou non un faux semblant au sens de la présente loi, avec l’intention de frauder, influe sur la cote publique des stocks, actions, marchandises ou toute chose offerte en vente au public.

(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [ 63 ] Fraud law is complex. To prove this point, one need only read the long

chapter written on the subject by Jean-Claude Hébert in his book Droit pénal des affaires . [19] It is, to quote McLachlin J. (she was not yet chief justice) in Théroux , [20] "an offence of general scope capable of encompassing a wide range of dishonest commercial dealings".

I do not intend to say very much beyond explaining why I find, with respect for the contrary opinion, that the trial judge erred when she convicted the appellant on this count. [ 64 ] First, I shall say a few words about the essential elements of the offence. [ 65 ] The leading cases on the subject are obviously Théroux and Zlatic , rendered contemporaneously by the Supreme Court in 1993.

In the first of these two judgments, McLachlin J. explains that the material element (the actus reus ) of fraud includes two elements: (1) a dishonest act, whether deceit, falsehood or other form of dishonesty, and (2) deprivation caused by this dishonest act, which may consists of an actual loss for the victim or the endangering of the victim's financial interests. [21] The person committing the fraud need not benefit from it to be found guilty, and the victim need not have suffered a real financial loss as a result of the fraud. [22] [ 66 ] The actus reus of fraud is therefore dishonest deprivation. [ 67 ] The words "other fraudulent means" "include means which are not in the nature of a falsehood or a deceit and they encompass all other means which can properly be stigmatized as dishonest" to quote Dickson J. (as he was then) in Olan . [23] In Zlatic , McLachlin J.

asserts that "The fundamental question in determining the actus reus of fraud within the third head of the offence of fraud is whether the means to the alleged fraud can properly be stigmatized as dishonest: Olan , supra .

In determining this, one applies a standard of the reasonable person". [24] It is therefore a question of assessing the accused's conduct with an objective perception of what constitutes dishonest conduct within the criminal meaning of the term. [ 68 ] As for the element of intent (the mens rea ) of the fraud, it consists of the accused's subjective knowledge that the act was dishonest and that it could cause a deprivation for a third party, without it being necessary for the accused to subjectively understand the dishonesty of his act.

As the author Hébert points out: [ translation ] "The concept of mens rea reflects the belief that people should not be punished unless they know that they are committing a prohibited act". [25] [ 69 ] We will now apply these teachings to the facts at issue here. In my view, and I say this with the utmost respect for the trial judge, she erred when finding that the appellant acted dishonestly.

In my opinion, her conclusion on the matter does not take into account the evidence adduced at trial. [ 70 ] The judge found that the appellant had taken documents from the Centre and then used them for personal purposes to obtain contracts in the Montreal area, without the Centre's authorization or knowledge. It is this conduct that was deemed to be dishonest and, in that context, constituted the "other fraudulent means" by which the fraud was committed.

I do not agree. [ 71 ] Before proceeding, I will say a few words about the allegedly confidential nature of the computer data the appellant transferred to his email inbox and the documents that were created with that data. First, from the description of the documents filed at trial, it appears that very few of these documents concern the Fil d'Ariane or are identified as the School Board's. Second, most if not all of these documents were used by the Centre's personnel to attract new clients.

Labbé even said that the first document in exhibit P-33 was given to Alcan Alma; the judge noted this in paragraph 100 of her judgment. Third, the process was already largely in the public domain because it had been submitted and then sold to several organizations as early as 2003, and it had been the subject of a detailed analysis [26] in a course offered at the HEC Montréal. At trial, Labbé stated that the Centre's personnel used this fourteen-page text, not counting the schedules, to approach clients, as noted by the judge in paragraph 104 of her judgment.

Fourth, the appellant had been an external consultant for about two years when he met with Desmarais for the first time; there was no written contract binding him to the Centre and consequently no non-competition or exclusivity clauses. [ 72 ] In my opinion, and I say this with respect for the trial judge, in this context the appellant's conduct was not dishonest, as that word is understood in the criminal law.

In Zlatic , McLachlin J. writes that dishonesty involves "an underhanded design which has the effect, or which engenders the risk, of depriving others of what is theirs". [27] With respect to "other fraudulent means", dishonesty is defined as "the wrongful use of something in which another person has an interest, in such a manner that this other's interest is extinguished or put at risk", and a use is wrongful when "it constitutes conduct which reasonable decent persons would consider dishonest and unscrupulous". [28] [ 73 ] What does the evidence reveal in this case?

The meeting that took place in the fall of 2005 between the appellant and Desmarais, their very first, unfolded as follows. Desmarais testified: [ translation ] Q. You met with Mr. Cormier for which service offer? R. Mr.

Cormier had told me at that point that he was working or had worked for a School Board that he had started a project supporting organizations with respect to work environment, work health, psychological health in particular, and that he would soon be retiring, he intended to pursue that project with interest, an interest directed, for example, at the City of Montreal, take some, a new market, and mainly the establishments you know, that are dedicated to mental health like the Louis H.

Lafontaine Hospital, that seemed to him that it could be interesting if an organization like ours joined up or worked with him as a consultant, well it was auspicious for the, to break into the health network. [29] ... Q. Did you receive any documents from Mr. Cormier? A. Yes, Mr. Cormier left documents with me during the first meeting, documents that were just the, the, the, let's say it, he asked me to read them so that I would have an idea of what he could offer because it was in the planning stages, that was the first (1 st ) meeting.

And in the second (2 nd ) meeting, he already had the documents from his, for his own project. Q. When you say his own project, Ms. Desmarais, could you tell me if you remember the, the words that were used by Mr. Cormier? A. Well, the words, the exact words, no. But the gist was that Mr. Cormier had worked on a project with, for his School Board, for which he worked and that the project that he wanted to set up had another name, it was called the fifth season but, you know, it was all inspired by the work that had been done.

It went further in, in, by finding inspiration in the process of the, the, the, what he had done with his School Board, it was based on that. [30] ... Q. Among the comments made during that meeting, was there any question of the moment when he would be ready to deliver these services, to offer that service? A. Because the first time I met him he told me that he wasn't ready at that point to perform that service, that it was in the process of being set up to give, to offer that service. [31] ...

A. Well it was when Mr. Cormier, the discussions we had at the beginning, it was that he was drawing inspiration from, he was basing himself on a project he had worked on, he wanted to modify it, he wanted to, you know, improve it or expand it, whatever, and it beca..., it changed names. Q. And that name, it was the fifth season? A. It was, it seems to me that it was, yes, I believe it was, that's what I remember it being. [32] [ 74 ] With respect for the contrary opinion, I do not believe that reasonable, decent people would consider this conduct to be dishonest and unscrupulous. It was an initial meeting.

The appellant was then in the twilight of his professional career. He had extensive professional experience in human resources management that he wanted to legitimately continue to use in the health sector in Montreal. He wanted the person he was speaking with to be familiar with his work. He showed her documents, some of which prominently featured the School Board's name and logo. He wanted Desmarais to get an idea of what he could do.

He took pains to say that what he would eventually present to her would be [ translation ] "inspired by" what he had done with the School Board, but that it would go [ translation ] "further". [ 75 ] In my view, it would be erroneous in such a context to convict the appellant of criminal fraud. Some might say that his conduct was dishonourable, that it lacked loyalty toward the School Board. That may be, but even that much is not clear. The Centre was absent from the Montreal market and the program that the appellant intended to offer, though based on the Fil d'Ariane, was different.

In any event, dishonourable conduct or lack of loyalty and criminal fraud are different things. The first two do not fall under criminal law. At worst, the appellant's conduct fell in a grey area, and the resulting uncertainty regarding the existence of dishonest conduct, which the Crown had to prove beyond any reasonable doubt, should have benefited the accused. The appellant simply has not committed a crime, in my view. [ 76 ] For all of these reasons, I would quash the judgment under appeal, set aside the conviction with respect to the fraud charge, and render in its stead a verdict of acquittal.

JACQUES CHAMBERLAND, J.A. REASONS OF GAGNON, J.A. [ 77 ] I have had the benefit of reading the reasons of my colleague Chamberland, J.A, and I agree with his conclusions allowing the appeal and acquitting the appellant on the charges of theft and fraud brought against him. With respect to the theft charge, however, I come to this same conclusion but by a different route. [ 78 ] The appellant was convicted of stealing computer data concerning a project identified as the Fil d'Ariane, which is the property of the Jonquière School Board (Business Service Centre).

The appellant was also convicted of depriving this owner of the computer data regarding this same project by fraudulent means. [ 79 ] For the purpose of my comments, I refer to the factual background given in the reasons of Chamberland, J.A. (

I) The charge of theft of computer data [ 80 ] First, like my colleague, I reject the appellant's argument that he could not have stolen documents relating to the Fil d'Ariane project merely because he held a copyright in that project. [33] [ 81 ] It appears from the evidence that the appellant undertook to perform work for his employer in exchange for remuneration. This work consisted in developing a prevention program with a team to reduce absenteeism in business and public establishments.

The context in which the Fil d'Ariane project came to be is quite simply inconsistent with the claim that the appellant had a copyright in this project. There is no need for me to say any more on the merits of this ground. [ 82 ] Moreover, contrary to Chamberland, J.A's point of view, I find that the facts underlying the theft charge are not related to the notion of computer data.

According to the factual background accepted into the record by the trial judge, the indictable offence concerned, if it is indeed one, can only refer to the appellant's fraudulent conversion of documents describing the Fil d'Ariane project. It follows that the goods, the object of the alleged theft, must be characterized as tangibles and, for the following reasons, as non- confidential. [ 83 ] That being said, I agree that, depending on context, computer data are by their very nature intangible.

From the moment an intangible is put to paper, however, as in this case, I find that this thing then becomes tangible. [ 84 ] This is, in fact, the point Lamer J. makes in Stewart : The "taking" of an intangible could only occur where such intangible is embodied in a tangible object, for example a cheque, a share certificate or a list containing information. However, that would not result in the taking of the intangible per se, but rather of the physical object evidencing it . [34]

[Emphasis added.] [ 85 ] The evidence shows that the appellant contributed in a significant way to the development of the Fil d'Ariane project, which he created in part. His mandate as a consultant was to approach potential users to promote the project.

In this context, there is nothing untoward about the product of an intellectual construct being stored electronically and then reproduced on paper, as need be. [ 86 ] This is why the prosecution insisted on the fact that the reprehensible act contemplated in the indictment did not target the computerized format of the information or even its confidential nature so much as it was based on the illegal appropriation of the project at issue for personal purposes.

In short, it argues that the sole purpose of this appeal respecting the theft charge consists in deciding whether the evidence adduced in first instance showed beyond a reasonable doubt that the appellant converted the Fil d'Ariane project for his own use. [ 87 ] Once the case is viewed from this angle, it is easy to understand why the prosecution does not contest the appellant's argument that there was no legal restriction prohibiting him from possessing the documents relating to the Fil d'Ariane project. The prosecution considers that argument to have no particular bearing on the outcome of this appeal.

In fact, it admits that the project was a tangible thing when the appellant gave excerpts to Desmarais, the representative of the Louis-H. Lafontaine Hospital. [ 88 ] I would add in passing that the appellant was not charged with the offence of unauthorized use of a computer. [35] [ 89 ] Also, the confidentiality of the product resulting from the appellant and his group's work has not been shown.

As the exhibits filed into the record in first instance demonstrate, before the meeting with the witness Desmarais, the information had already been broadly disseminated in certain sectors and had even been the subject of a university presentation. [36] [ 90 ] As to the materiality of the evidence, it is undisputed insofar as the witness Desmarais testified to having received documents from the appellant that had to do with the Fil d'Ariane project. [ 91 ] In short, I find that the object of the theft for which the appellant was charged, in this case the Fil d'Ariane project, was a tangible thing represented by documents that were likely to be known by a target audience.

In fact, these observations do not seem to be questioned by the parties.

Once these conclusions have been reached, evidence that a theft of [ translation ] "computer data" was committed is quite simply deficient. [ 92 ] If we were to agree to analyze the theft charge according to the theory submitted by the prosecution, it would be necessary to consider whether the evidence showed beyond a reasonable doubt that the appellant had converted for his own use the Fil d'Ariane project with the intention of depriving the Jonquière School Board and its offshoot, the Business Service Centre, of their interest in the project. [ 93 ] In Stewart , Lamer J. asserts that the act of copying information cannot constitute theft since the owner is deprived of neither the use nor the possession of the information in question. [37] [ 94 ] Desmarais testified that she met with the appellant in the fall of 2005.

On that occasion, he gave her documents, some of which bore the name of the Jonquière School Board. It appears that he then indicated that he was planning to present her with a service offer based on another project that he intended to put together. Chamberland, J.A. alludes to this evidence in paragraph 73 of his reasons. [ 95 ] In my opinion, the evidence presented at trial does not establish beyond any reasonable doubt that the project that the appellant intended to submit to the Louis-H.

Lafontaine Hospital was that of the Fil d'Ariane. [ 96 ] First, the appellant did not hide from the person he was talking with the fact that he had worked on a similar project when he worked for a school board. Then, Desmarais's testimony highlights that the documents she received during that meeting were given as an introduction to another project called [ translation ] "the fifth season".

There is no tangible evidence that the Fil d'Ariane and the fifth season projects are one and the same or even that they are so similar that the second one would amount to an actual conversion of the first. [ 97 ] Except from an ethical standpoint, there was nothing to prohibit the appellant from disclosing a part of the Fil d'Ariane project to Desmarais.

This conduct in of itself is not indicative of a fraudulent conversion, all the more so since the evidence shows that the appellant's proposal was for a distinct project. [ 98 ] I would add that the appellant's conduct, in light of its ambiguous nature, cannot be more accurately described as the indictable offence of attempted theft.

The conduct in question, in the worst case scenario, never went beyond the preparatory stages of that offence. [38] [ 99 ] Finally, I find that it has not been shown that the Jonquière School Board was deprived at any time of the special interest it had in the written information given to Desmarais. The prosecution, because it is aware of the deficiencies in its evidence, practically conceded the merits of the appeal on that count of the indictment during the appellate hearing. (II) The fraud charge [ 100 ] In addition, I agree with the review of the offence under

section 380 Cr. C. conducted by Chamberland, J.A. and particularly with respect to the fundamental distinctions to be drawn between the physical element of this offence ( actus reus ) and its psychological element ( mens rea ). [ 101 ] Moreover, his analysis is in line with this Court's recent judgment in R. v. Parent . [39]

[ 102 ] In this case, even if the appellant has not shown any great loyalty to his employer and mandator, which might constitute a civil fault (art. 2088 C.C.Q. ), I find that the prosecution has not successfully established the constitutive elements of the actus reus for the offence of fraud. [ 103 ] A reasonable person, well aware of the circumstances in which the appellant did what he did, could not conclude that he was acting dishonestly.

I repeat that the evidence has not established that it was a confidential document and the version given by the witness Desmarais does not indicate that handing over the information was a fraudulent act resulting in deprivation or the risk of deprivation. Conclusion [ 104 ] I would therefore, as Chamberland, J.A. proposes, quash the judgment in appeal and acquit the appellant of the charges brought against him. GUY GAGNON, J.A.