R. v. Young, 2019 NLSC 32

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Young , 2019 NLSC 32 Date : February 8, 2019 Docket : 201804G0095 Her Majesty The Queen v. Thomas Stanley CRAIG Young Before: Justice George L. Murphy Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: October 17 – 19, 2018 and November 28 and 30, 2018

Summary: The Accused was charged with a number of offences arising out of the deposit of a fraudulent cheque as part of an online romance scam. The charges alleged that he defrauded the bank at which he deposited the cheque and then purchased a used pick-up truck, a new snowmobile, a used snowmobile, and a used all-terrain vehicle using cash he withdrew from the bank after deposit of the cheque. The Accused was convicted of all charges. Appearances: Susan H. Gallant, Q.C. Appearing on behalf of Her Majesty The

Queen Shelley A. Senior, Q.C. Appearing on behalf of Thomas Stanley Young Authorities Cited: CASES CONSIDERED: R. v. Théroux, (SCC), [1993] 2 S.C.R. 5, [1993] S.C.J. 42; R. v. Olan, (SCC),[1978] 2 S.C.R. 1175, 41 C.C.C. (2d) 145; R. v. Sansregret (1985), (SCC), 14 W.C.B. 151, 18 C.C.C. (3d) 233 (S.C.C.);and R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] Thomas Stanley Craig Young (the “Accused”) stands charged before this Court with the following offences: Count #1 Between the 29th day of January, A.D., 2016 and the 2nd day of February, A.D. 2016 at or near Stephenville, Newfoundland andLabrador did by deceit, falsehood or other means defraud the Bank of Montreal of money, the value of which exceeded five thousanddollars by cashing a fraudulent cheque contrary to section 380(1) of the Criminal Code.

Count #2 And furthermore on or about the 23rd day of February, A.D. 2016 at or near Stephenville Crossing, Newfoundland and Labrador didhave in his possession a 2016 Artic Cat snowmobile of a value exceeding five thousand dollars knowing that all of the property wasobtained by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(

a) of the Criminal Code. Count #3 And further on or about the 23rd day of February, A.D. 2016 at or near Stephenville Crossing, Newfoundland and Labrador did have inhis possession a 2009 Bombardier snowmobile of a value not exceeding five thousand dollars knowing that all of the property wasobtained by the commission in Canada of an offence punishable by indictment contrary to Section 354(1)(

a) of the Criminal Code. Count #4 And further on or about the 23rd day of February, A.D. 2016 at or near Stephenville Crossing, Newfoundland and Labrador did have inhis possession a 2007 Artic Cat all-terrain vehicle of a value not exceeding five thousand dollars knowing that all of the property wasobtained by the commission in Canada of an offence punishable by indictment contrary to Section 354(1)(

a) of the Criminal Code.

Count #5 And further on or about the 23rd day of February, A.D. 2016 at or near Stephenville Crossing, Newfoundland and Labrador did have in his possession a 2004 Ford F-150 of a value not exceeding five thousand dollars knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment contrary to Section 354(1) (

a) of the Criminal Code . [ 2 ] At trial, the Crown called the following eight witnesses: a. Diane Chaulk, who is the Assistant Manager at the Stephenville branch of the Bank of Montreal (the “Bank” or the “Bank of Montreal”) ; b. Karen Tobin, who is a Customer Service Representative at the Stephenville branch of the Bank of Montreal; c. Corporal Steven Henley of the Stephenville detachment of the Royal Canadian Mounted Police (“RCMP”); d. Constable Jake Foran of the RCMP, Stephenville detachment; e. Edwin Logan, Chief Financial Officer with Scotia Distribution Services Ltd.; f.

Leo King, a resident of Stephenville Crossing; g. Joseph Gay, an employee of Humber Motors Ford in Stephenville; and h. Guy Styles, the owner/operator of GNR Recreation in Stephenville. [ 3 ] There were two witnesses called by the Defence, namely the Accused and Janice Bridger who was a Customer Service Representative at the Stephenville branch of the Bank of Montreal.

summary of charges [ 4 ] Count 1 is based on the deposit of a fraudulent cheque in the amount of $75,360.12 by the Accused into his bank account at the Stephenville branch of the Bank of Montreal. It is not disputed by the Accused that he deposited the fraudulent cheque, which on its face appeared to be a cheque from Scotia Distribution Services Ltd. Further, it is not disputed that by cashing the cheque, the Bank was defrauded of money in excess of $5,000. The sole issue in respect of this offence is whether the Crown has established the necessary mens rea .

Essentially, the position of the Accused is that he took the cheque to the Bank believing that the Bank would know if it was legitimate or not and that the Bank accepted it and allowed the immediate withdrawal of money. He argues that this belief on his part negates the existence of the necessary mens rea . [ 5 ] The Crown argued that the actions of the Accused in presenting the cheque to the Bank for deposit as a means of determining whether it was fraudulent constituted the necessary mens rea of the offence.

This argument of the Crown is premised on the knowledge of the Accused as to how the cheque came into his possession. [ 6 ] Counts 2, 3, 4 and 5 are similar. The allegation in each charge is that the Accused used the money that he obtained from the Bank via the deposit of the fraudulent cheque to purchase the items in question and thus was in possession of those items knowing that they were obtained by the commission in Canada of an offence punishable by indictment. [ 7 ] In respect of Counts 2, 4 and 5, the Accused does not dispute that he purchased and had in his possession the items covered by the counts.

Nor does he dispute that he purchased them using cash. He testified that the cash he used to purchase them was from cash savings he had accumulated. [ 8 ] In respect of Count 3, the position of the Accused is that he did not purchase this snowmobile and instead it was his son who purchased it.

He claimed that he merely went with his son to the residence of Leo King, the person from whom the snowmobile covered by this Count was purchased Count 1 analysis [ 9 ] The Accused became involved in a scheme whereby he agreed to assist a person whom he had met online in depositing a cheque to his bank account and sending the proceeds from the cheque to that person. The Accused believed the person he was assisting was a woman named Nino.

He testified that he met Nino in the late summer of 2015 on a dating website and subsequently started communicating with her via Facebook. [ 10 ] I do not believe the Accused’s testimony that he met Nino on a dating website in the summer of 2015. There is no evidence other than his testimony that they met in that manner or at that time. However, at trial there was introduced into evidence the Facebook messages the Accused exchanged with Nino. They were obtained from his Facebook account and cover the period from November 11, 2015 to February 7, 2016.

It is clear from the messages exchanged on November 11, 2015 that this was the first date on which the Accused and Nino began communicating. The following exchange occurred on that date: Conversation started November 11, 2015 Nino Sanikidze

Hello Thomas how are you doing? Thomas Young Hi there I’m doing good thank you. And how are you doing? Nino Sanikidze Am perfect I am Nino Thomas Young That’s great. It’s nice to meet you Nino Sanikidze I searched your profile saw you are handsome I am planning to relocate that was why I messaged you Thomas Young Awwww thank you so much Nino Sanikidze I am in search for an honest and responsible man Thomas Young Where are you planning to relocate That’s a hard thing to find today Nino Sanikidze Your location

You single or married Thomas Young I’m 100% single Nino Sanikidze Tell me about yourself and hobbies Thomas Young And I have the up most respect for a lady I’m kind and generous I’m a very soft hearted guy I love life Nino Sanikidze I am single no kid married before lost my hobby, want to open a new

chapter with a responsible man Thomas Young Yes, I really understand Nino Sanikidze Where are you from? Thomas Young Stephenville, Newfoundland Canada Nino Sanikidze I love to settle there

Thomas Young It’s nice here Nino Sanikidze I work for a shipping company as coordinator in the ship,i travel a lot to deliver product We are 7 days on water now going to europe Coming to canada after this trip Thomas Young It’s on old USA air force Base Ho that’s really nice Nino Sanikidze Yeah want a man who can plan life with me Coming to invest also in canada Thomas Young I understand. I’m looking for the same in a lady Nino Sanikidze What your occupation? Thomas Young I’m a contractor

Nino Sanikidze I need an active man who will always talk to me daily What kind of contractor Thomas Young I love talking Don’t matter what it’s about Nino Sanikidze Lol guess you are the kind of man have been looking for I hate cheater or dishonest man I want a responsible and understanding man in my life Thomas Young Yes I agree with you Nino Sanikidze We can email each other daily and I can trust in is word honestly and meet him after my trip to Europe a man who is after my happiness Thomas Young I know how to treat a lady and how to enjoy life I would like to have that chance Nino Sanikidze Tell me about your hobbies

Thomas Young I enjoy anything that is exciting and extreme Nino Sanikidze Send me your email and I will email more about myself to you Thomas Young From riding a horse to jumping off a cliff Nino Sanikidze We are going to turkey to deliver crude oil am also going for crude trading so I can have enough profit to settle when I come to canada and invest What kind of contract are you into? I like to be open minded no secrets Thomas Young thomasyoung856@yahoo.ca Nino Sanikidze Do you have yahoo messenger I prefer chatting there Thomas Young I’m into building Fast food restaurants for large fast food chains No I don’t have yahoo messenger Nino Sanikidze Nino4luv@yahoo.com

Please download it on your phone and Pc and add my email let’s chat there okay thomas Thomas Young I’ll do it now Nino Sanikidze Okay let me know once you done and add me Thomas Young Ok I will Nino Sanikidze Can you take care of a woman needs financially Thomas Young Yes Nino Sanikidze Do you have kids? Download the yahoo messenger Thomas Young I have money No kids Nino Sanikidze I am not after money but love

Thomas Young Awwwwewww Nino Sanikidze I want a man who is responsible and will treat me with respect and value me Thomas Young Ok I’ll go down load yahoo Nino Sanikidze Are you downloading the yahoo now? Thomas Young That’s me Yup Nino Sanikidze No cheating, I hope you don’t cheat? Thomas Young Nope never did Nino Sanikidze I sent you request on Yahoo messenger check it out Msg me once you done downloading Thomas Young

I did it Nino Sanikidze Let talk there in 1 1 hr Thomas Young Ok [11] I find as fact that November 11, 2015 is when the Accused and Nino began communicating. Thereafter, they communicated viaFacebook and Yahoo Messenger; however, there is no record of the communication by this latter mode of communication. [12] Nino told the Accused that she worked for an oil company and traveled throughout the world on a ship.

She also told him shewas owed money by her employer and would be receiving a cheque and it was this cheque that she wanted the Accused to assist with bydepositing it to his bank account and sending the money to her. She obtained contact information from the Accused and told him that theperson with her employer who was responsible for issuing the cheque would be in contact with him about that. Subsequently, theAccused began communicating via email and telephone with an individual who identified himself as Gary Smith.

As the Accusedhimself acknowledged, in the initial statement he gave to the police on February 6, 2017 after the fraudulent scheme was revealed, Ninoand Gary Smith could have been one and the same person. This is something which will likely never be known; however, whether theywere the same person or two different people is not important in my assessment of this matter. [13] On November 20, 2015, nine days after the Accused began communicating with Nino, she first brought up the subject of theAccused helping her with a cheque she was supposedly entitled to receive.

Ultimately, the Accused did receive a cheque on or aboutJanuary 28 – 29, 2016. The Accused subsequently went to the Bank, Stephenville branch, on January 29, 2016, to deposit the cheque.The Customer Service Representative did not detect that the cheque was fraudulent and she did not follow the normal bank practice ofputting a hold on the cheque prior to allowing funds from that cheque to be withdrawn. [14] The Accused ought to have been very suspicious about this cheque given the circumstances in which it came into hispossession.

It is not every day that a person receives a cheque payable to him or her for in excess of $75,000 from a company they havenever heard of or had any relationship with and representing money supposedly owing to a person he or she had met online only a littleover two months prior. In fact, the Accused was suspicious about the cheque and whether or not it was real or a fake. He acknowledgedthis on a number of occasions in his statements he gave to the police on February 7, 2016 and February 13, 2016 and in his testimony oncross-examination.

He also questioned Nino about the cheque being fake in Facebook messages exchanged with her. The Accused, beingaware of the circumstances in which the cheque came into his possession and being suspicious whether it was real or a fake, took nosteps to try and determine whether in fact it was a legitimate cheque.

Instead, the Accused decided to bring the cheque to the Bank to seeif it would clear or not without saying a word about his suspicions or the unusual manner in which he came into possession of thecheque. [15] As noted earlier, it is not disputed that the Bank of Montreal was defrauded of money in excess of $5,000.

In fact, the amountthey were defrauded was $58,435.15, being the cash amounts that the Accused withdrew from the Bank of Montreal after depositing thefraudulent cheque plus the purchases he made after the deposit of said cheque using his debit card that was linked to his bank account.At the time the Accused deposited this cheque, he had a negative balance in his account. The issue in dispute is whether the conduct ofthe Accused constituted deceit, falsehood or other fraudulent means within the meaning of section 380(1) of the Criminal Code, R.S.C.1985, c.

C-46. [16] One of the leading cases in this country dealing with the elements of the offence under section 380(1) is the 1993 SupremeCourt of Canada decision in R. v. Théroux, (SCC), [1993] 2 S.C.R. 5, [1993] S.C.J. 42. While the issue on the appeal inthat case dealt with the mens rea of the offence of fraud, the analysis of the Supreme Court of Canada dealt with both the mens rea andthe actus reus. [17] In terms of the actus reus, the Supreme Court of Canada said at paragraphs 16 - 19: 2.

The Actus Reus of Fraud 16 Since the mens rea of an offence is related to its actus reus, it is helpful to begin the analysis by considering the actus reus of theoffence of fraud. Speaking of the actus reus of this offence, Dickson J. (as he then was) set out the following principles in Olan:

(i)the offence has two elements: dishonest act and deprivation; (ii)the dishonest act is established by proof of deceit, falsehood or "other fraudulent means"; (iii)the element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim,caused by the dishonest act. 17 Olan marked a broadening of the law of fraud in two respects. First, it overruled previous authority which suggested that deceit was anessential element of the offence.

Instead, it posited the general concept of dishonesty, which might manifest itself [page16] in deceit,falsehood or some other form of dishonesty. Just as what constitutes a lie or a deceitful act for the purpose of the actus reus is judged onthe objective facts, so the "other fraudulent means" in the third category is determined objectively, by reference to what a reasonableperson would consider to be a dishonest act. Second, Olan made it clear that economic loss was not essential to the offence; theimperilling of an economic interest is sufficient even though no actual loss has been suffered.

By adopting an expansive

interpretation ofthe offence, the Court established fraud as an offence of general scope capable of encompassing a wide range of dishonest commercialdealings. 18 Subsequent cases followed Olan's lead, fleshing out the elements of the offence set out in Olan in a broad and purposive manner. Oneof the first questions which arose was whether the third type of dishonest conduct, "other fraudulent means", was a super-added elementwhich the Crown must prove in addition to proving either deceit or falsehood. This was rejected in R. v. Doren (1982), (ON CA), 36 O.R. (2d) 114 (C.A.); see also R. v.

Kirkwood (1983), (ON CA), 42 O.R. (2d) 65 (C.A.). In anumber of subsequent cases, courts have defined the sort of conduct which may fall under this third category of other fraudulent meansto include the use of corporate funds for personal purposes, non-disclosure of important facts, exploiting the weakness of another,unauthorized diversion of funds, and unauthorized arrogation of funds or property: R. v. Black and Whiteside (1983), (ON CA), 5 C.C.C. (3d) 313 (Ont. C.A.); R. v. Shaw (1983), (NB CA), 4 C.C.C. (3d) 348 (N.B.C.A.); R. v. Wagman(1981), (ON CA), 60 C.C.C. (2d) 23 (Ont. C.A.); R. v.

Rosen (1979), (ON SC), 55 C.C.C. (2d)342 (Ont. Co. Ct.); R. v. Côté and Vézina (No. 2) (1982), (QC CA), 3 C.C.C. (3d) 557 (Que. C.A.); R. v. Hansen(1983), 1983 ABCA 68 , 25 Alta. L.R. (2d) 193 (C.A.); R. v. Geddes (1979), (MB CA), 52 C.C.C. (2d) 230(Man. C.A.); R. v. Currie; R. v. Bruce (1984), 5 O.A.C. 280, and R. v. Kirkwood, supra. As noted above, where it is alleged that theactus reus of a particular fraud is "other fraudulent means", the existence of such means will be determined by what reasonable people[page17] consider to be dishonest dealing.

In instances of fraud by deceit or falsehood, it will not be necessary to undertake such aninquiry; 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. 19 A further question, whether it was necessary for the accused to have profited by the fraud, had been uniformly answered in thenegative prior to Olan: Welham v. Director of Public Prosecutions, [1961] A.C. 103 (H.L.); R. v. Melnyk (1947), (BCCA), 90 C.C.C. 257 (B.C.C.A.); R. v. Rodrigue, Ares and Nantel (1973), (QC CA), 17 C.C.C. (2d) 252 (Que. C.A.);R. v.

Allsop (1976), 64 Cr. App. R. 29, and R. v. Huggett (1978), (ON CA), 42 C.C.C. (2d) 198 (Ont. C.A.). In Olan,this Court affirmed this rule at pp. 1182-83. [18] As noted earlier, there is no issue here with the element of deprivation. The Bank of Montreal was deprived of money as aresult of the actions of the Accused. In terms of the dishonest act component of the actus reus, Dickson, J. in R. v. Olan, (SCC), [1978] 2 S.C.R. 1175, 41 C.C.C. (2d) 145 noted that the dishonest act is established by proof of deceit, falsehood or otherfraudulent means.

What constitutes deceit, falsehood or other fraudulent means for the purpose of the actus reus is determinedobjectively by reference to what a reasonable person would consider to be a dishonest act. [19] I have no difficulty in concluding, based on the objective standard, that the actions of the Accused constituted a dishonest act.He walked into the Bank of Montreal with a cheque payable to him when he knew the cheque did not belong to him.

He was beingdeceitful because the very act of presenting the cheque for deposit was a representation to the Bank that this was a legitimate chequerepresenting money due to the Accused by the payor when in fact it was not. This constitutes deceit based on the objective standard. Ialso have no difficulty in concluding that the complete failure of the Accused to disclose any of the facts regarding how the cheque cameinto his possession and that he had suspicions about whether the cheque was real or a fake constitutes other fraudulent means within themeaning of section 380(1).

Such action or inaction also constitutes a dishonest act when measured against the objective standard of areasonable person. Thus, the actus reus of the offence has been established to the criminal standard in this case. [20] In terms of the mens rea of the offence of fraud in section 380(1), in Théroux the Supreme Court of Canada first examined theconcept of mens rea generally before moving on to examine the concept specifically as it related to fraud.

In terms of this latterexamination, the Supreme Court of Canada said at paragraphs 24 - 29: 24 Having ventured these general comments on mens rea, I return to the offence of fraud. The prohibited act is deceit, falsehood, orsome 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 wasundertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving anotherof property or putting that property at risk. If this is shown, the crime is complete. The fact that the accused may have hoped thedeprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence.

To putit another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined byreference to the external acts which constitute the actus of the offence (see Williams, supra, c. 3), the proper focus in determining themens 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. 25 This applies as much to the third head of fraud, "other fraudulent means", as to lies and acts of deceit. Although other fraudulent means have been broadly defined as means which are "dishonest", it is not necessary that an accused personally consider these means to be dishonest in order that he or she be convicted of fraud for having undertaken them.

The "dishonesty" of the means is relevant to the determination whether the conduct falls within the type of conduct caught by the offence of fraud; what reasonable people consider dishonest assists in the determination whether the actus reus of the offence can be made out on particular facts. That established, it need only be determined that an [page20] accused knowingly undertook the acts in question, aware that deprivation, or risk of deprivation, could follow as a likely consequence. 26 I have spoken of knowledge of the consequences of the fraudulent act.

There appears to be no reason, however, why recklessness as to consequences might not also attract criminal responsibility. Recklessness presupposes knowledge of the likelihood of the prohibited consequences. It is established when it is shown that the accused, with such knowledge, commits acts which may bring about these prohibited consequences, while being reckless as to whether or not they ensue. 27 These doctrinal observations suggest that the actus reus of the offence of fraud will be established by proof of: 1. the prohibited act, be it

an act of deceit, a falsehood or some other fraudulent means; and 2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim's pecuniary interests at risk. Correspondingly, the mens rea of fraud is established by proof of: 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). 29 Where the conduct and knowledge required by these

definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur. 29 The inclusion of risk of deprivation in the concept of deprivation in Olan requires specific comment. The accused must have subjective awareness, [page21] at the very least, that his or her conduct will put the property or economic expectations of others at risk. As noted above, this does not mean that the Crown must provide the trier of fact with a mental snapshot proving exactly what was in the accused's mind at the moment the dishonest act was committed.

In certain cases, the inference of subjective knowledge of the risk may be drawn from the facts as the accused believed them to be. The accused may introduce evidence negating that inference, such as evidence that his deceit was part of an innocent prank, or evidence of circumstances which led him to believe that no one would act on his lie or deceitful or dishonest act.

But in cases like the present one, where the accused tells a lie knowing others will act on it and thereby puts their property at risk, the inference of subjective knowledge that the property of another would be put at risk is clear. [ 21 ] The argument of the Accused is that he lacked the necessary mens rea because he honestly believed that the Bank would know if the cheque was real or a fake when he presented it for deposit.

The Accused presented the cheque for deposit and the Accused testified that when the Customer Service Representative did not question the cheque and allowed him to immediately withdraw money, he believed the cheque must be legitimate. [ 22 ] It is my finding that the Accused was subjectively aware that he was undertaking a dishonest act, that act being either the deceit or other fraudulent means discussed earlier in my analysis of the actus reus . This establishes the first component of the mens rea of fraud. I also conclude that the Accused knew that this dishonest act could cause deprivation to the Bank.

He intentionally presented the cheque to the Bank for deposit to his account as if it was a legitimate cheque he received from the payor while knowing there was no money owing to him by the payor. He was suspicious at the time that the cheque was a fake. In my determination, anyone in such circumstances who regularly uses a bank account as the Accused did would have known that deprivation or a risk of deprivation could follow as a likely consequence to the Bank. I note that the verb used by the Supreme Court of Canada in Théroux was “could” not “would”.

The mens rea is not negated in circumstances such as existed here simply because the Accused may have believed that the Bank would know if the cheque was real or not. The Accused knew the cheque might be a fake yet decided to take a chance and attempt to cash it despite this knowledge. This establishes the second component of the mens rea of fraud.

[23] While I am of the view that the actions of the Accused combined with his knowledge as outlined in the preceding paragraphestablishes the mens rea component of the offence of fraud to the criminal standard, I note as well on the basis of Théroux and R. v.Sansregret (1985), (SCC), 14 W.C.B. 151, 18 C.C.C. (3d) 233 (S.C.C.) that mens rea can also be established by proof ofrecklessness or willful blindness.

In Sansregret, the differences between recklessness and willful blindness were discussed and atparagraph 22 McIntyre, J. for the Supreme Court of Canada said: 22 Willful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become awareof the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remainignorant.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. Cases such as R.v. Wretham [page585] (1971), 16 C.R.N.S. 124 (Ont. C.A.); R. v. Blondin (1971), (BC CA), 2 C.C.C. (2d) 118(B.C.C.A.), appeal dismissed in this Court at (1971), (SCC), 4 C.C.C. (2d) 566 (see: [1971] S.C.R. v, unreported); R.v. Currie (1976), (ON CA), 24 C.C.C. (2d) 292 (Ont. C.A.); R. v. McFall (1975), (BC CA), 26C.C.C. (2d) 181 (B.C.C.A.); R. v.

Aiello (1978), (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.); Roper v. Taylor's CentralGarages (Exeter) Ltd., [1951] 2 T.L.R. 284, among others illustrate these principles. The textwriters have also dealt with the subject,particularly Glanville Williams (Criminal Law: The General Part, 2nd ed. 1961, at pp. 157-160). He says, at p. 157: Knowledge, then, means either personal knowledge or (in the licence cases) imputed knowledge. In either event there is someone withactual knowledge. To the requirement of actual knowledge there is one strictly limited exception.

Men readily regard their suspicions asunworthy of them when it is to their advantage to do so. To meet this, the rule is that if a party has his suspicion aroused but thendeliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. He then referred to the words of Lord Sumner in The Zamora No. 2, [1921] 1 A.C. 801, at pp. 811-12, which was a case wherein a shipand cargo were condemned in the Prize Court as contraband.

The managing director of the shipping company denied knowledge of thecontraband carried by the ship, and on this subject Lord Sumner said, at pp. 811-12: Lord Sterndale [the president of the Prize Court] thus expressed his final conclusion: "I think the true inference is that, if Mr. Banck didnot know this was a transaction in contraband, it was because he did not want to know, and that he had not rebutted the presumptionarising from the fact of the whole cargo being contraband." Their Lordships have been invited to read this as saying that Mr.

Banck is not proved to have known the contraband character of theadventure; that if he did not know, because he did not want to know, he was within his rights and owed no duty to the belligerents toinform himself; and that the Zamora is condemned contrary to the passage above cited from The Hakan, [1918] A.C. 143, upon a legalpresumption arising solely and arbitrarily [page586] from the fact that the whole cargo was contraband. It may be that in his anxiety notto state more than he found against Mr.

Banck, the learned President appeared to state something less, but there are two senses in which aman is said not to know something because he does not want to know it. A thing may be troublesome to learn, and the knowledge of it,when acquired, may be uninteresting or distasteful. To refuse to know any more about the subject or anything at all is then a wilful but areal ignorance.

On the other hand, a man is said not to know because he does not want to know, where the substance of the thing is bornein upon his mind with a conviction that full details or precise proofs may be dangerous, because they may embarrass his denials orcompromise his protests. In such a case he flatters himself that where ignorance is safe, 'tis folly to be wise, but there he is wrong, for hehas been put upon notice and his further ignorance, even though actual and complete, is a mere affectation and disguise.

Glanville Williams, however, warns that the rule of deliberate blindness has its dangers and is of narrow application. He says, at p. 159: The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, anunstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almostbe said that the defendant actually knew.

He suspected the fact; he realized probability; but he refrained from obtaining the finalconfirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect afinding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilfulblindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.

This subject is also dealt with by Professor Stuart in Canadian Criminal Law, 1982, at p. 130 et seq., where its relationship torecklessness is discussed. [24] The comments of McIntyre, J. regarding willful blindness apply to the situation the Accused found himself in. The Accusedsuspected the cheque might be a fake and he was fully aware of the suspicious circumstances by which the cheque came into hispossession. The situation screamed out for some inquiry by him. The Accused knew there was reason for inquiry and he deliberately andintentionally failed to inquire.

Such conduct constitutes willful blindness and also establishes the necessary mens rea for the offence offraud under section 380(1).

[ 25 ] The Crown having proven both the actus reus and the mens rea of the charge under section 380(1) of the Criminal Code to the criminal standard, namely proof beyond a reasonable doubt, I find the Accused guilty of that charge. I now move on to deal with Counts 2, 3, 4 and 5 of the Indictment. Counts 2, 3, 4 and 5 analysis [ 26 ] Firstly, with regard to Counts 2, 4 and 5, as I noted earlier, the Accused does not dispute that he purchased the items covered by these Counts, namely a motor vehicle, snowmobile, and an all-terrain vehicle. Nor does the Accused dispute that he purchased them using cash.

The position of the Accused is that he purchased all of these items from cash savings he had accumulated. With regard to Count 3, the Accused testified that his son purchased this snowmobile and not him. The Accused does not dispute that all of these items were seized by the RCMP from his property on February 23, 2016 pursuant to a warrant. The position of the Crown is that the evidence of the Accused is a fabrication and should be rejected.

The Crown asks the Court to draw the inference from the evidence that the Accused purchased all of the items in question using cash which he had withdrawn from his account after the deposit of the fraudulent cheque. [ 27 ] It is my determination in this case that this is exactly and precisely what the Accused did. I do not believe the evidence of the Accused that the cash came from savings he had accumulated and further his evidence on this issue does not raise any doubt whatsoever in my mind as to the source of the cash. The evidence of the Accused throughout was rife with inconsistencies and contradictions.

There were inconsistencies and contradictions within his testimony on direct examination and also within his testimony on cross-examination. There were also inconsistencies and contradictions between his testimony on direct examination and his testimony on cross-examination. Further, there were inconsistences and contradictions between the two statements he gave to the police and between what he said in those statements and his testimony at trial. In short, it was impossible to know what, if anything, to believe from the testimony of the Accused.

I found him to be completely lacking in credibility. [ 28 ] The foregoing being said, simply because I do not believe the evidence of the Accused and found him to be completely lacking in credibility, I must be cognizant of the fact that the Crown must still prove beyond a reasonable doubt that the cash used by the Accused to purchase the items in question was the cash that the Accused withdrew from his bank account after depositing the fraudulent cheque.

There is no direct evidence that this was the case and instead the Crown relies on circumstantial evidence as proof. [ 29 ] Based on the circumstantial evidence, I have concluded that the Accused did indeed use the cash that he had withdrawn from his bank account after the deposit of the fraudulent cheque to purchase the items in question. Essentially, the Accused decided to turn the tables so to speak on the online scammer or scammers by keeping the money he was supposed to send to them. He used it to purchase the motor vehicle, snowmobiles, and the all-terrain vehicle covered by Counts 2, 3, 4 and 5.

I am satisfied that the circumstantial evidence proves this beyond a reasonable doubt. [ 30 ] I will explain why I have reached this conclusion. On January 29, 2016, immediately before the Accused deposited the fraudulent cheque, he had a negative balance of $205.59 in his bank account. The account had continuously been in a negative balance position since May 29, 2015, a period of eight months. This is shown by the bank statements for the account of the Accused which were entered into evidence.

After deposit of the fraudulent cheque on January 29, 2016, the Accused made the following cash withdrawals: DATE TYPE OF WITHDRAWAL [1] AMOUNT OF WITHDRAWAL January 29, 2016 Bank CSR $5,000 January 30, 2016 ATM $500 January 31, 2016 ATM $500 February 1, 2016 ATM $500 February 1, 2016 Bank CSR $20,000 February 2, 2016 Bank CSR $30,000 TOTAL $56,500 [ 31 ] I note that the bank statements of the Accused show the three ATM withdrawal amounts of $500 each as having occurred on February 1, 2016.

However, I am satisfied based on the evidence that the first two of these occurred on Saturday, January 30, 2016 and Sunday, January 31, 2016 respectively. They appear on the statement dated as of the first business day after they were made, namely February 1, 2016. The Accused confirmed he could only withdraw $500 per day from his account through an ATM and also confirmed his ATM withdrawals on the dates in the foregoing chart. [ 32 ] The Accused in his evidence professed to have earned significant monies from his contracting business in the years prior to 2016.

His evidence was that he had been saving up cash in 2015 for the purpose of purchasing a new truck and had $30,000 saved at the time he purchased the vehicles in question. [ 33 ] However, there was significant evidence presented which casts grave doubt on the claim of the Accused that he had saved up $30,000 in cash. I note that the bank account records of the Accused for 2015 show that he had only the following deposits into his account in 2015 (besides the fraudulent cheque): DATE AMOUNT February 16, 2015 $6,352.86 March 25, 2015 $6,743.39 April 17, 2015 $7,138.21

TOTAL $21,234.46 [ 34 ] These deposits were in relation to a contract the Accused had for work on the Tim Horton’s store in Stephenville. Immediately upon the deposit of the foregoing sums, cash withdrawals of approximately equivalent amounts were made from the account. The Accused testified he would take a percentage of these cash withdrawals for his savings. The Accused also testified that he had employees on the Tim Horton’s job and it is safe to conclude that some of the money withdrawn was to pay his employees. There was no evidence on how much went to pay employees.

The Accused was questioned as to why there was no activity in his bank account for the remainder of the year. His explanation was that he was probably working for cash or received cheques from a different financial institution than the Bank of Montreal, in which case he would cash them at that other institution. The Accused also said he thought he took the summer off that year and went back to work in September. In fact, he also said he thought he took off the period from May until September.

When asked what he did for money, his response was that he had lots of money saved up. [ 35 ] Further, from the evidence presented, it is undisputed that the Accused did not file his Income Tax Return for the years 2012, 2013, 2014 or 2015. As well, for the taxation year 2011 when he did file his Income Tax Return, his income for tax purposes was $12,792.

We also know that the Accused applied for and received social assistance benefits in the years 2012, 2013, 2014, and 2015 in the following amounts: YEAR AMOUNT OF SOCIAL ASSISTANCE 2012 $12,329.50 2013 $12,912.00 2014 $12,944.50 2015 $10,560.00 [ 36 ] These are significant amounts and suggest the Accused was in receipt of social assistance benefits for large parts of these years. [ 37 ] The undisputed evidence of the financial position of the Accused is inconsistent with the story presented by him that he made lots of money and had lots of money saved up to make the cash purchases of the items in question. [ 38 ] The Accused went on to essentially tell the Court that it was mere coincidence that he purchased the items he admitted purchasing, namely the motor vehicle, snowmobile, and all-terrain vehicle very soon after depositing the fraudulent cheque and making the cash withdrawals from the Bank.

He said that he had been saving up to buy a new vehicle and that on Saturday, January 30, the vehicle he had owned and been using broke down and was not worth putting back on the road anymore. As a result, he said he had to go look for a new vehicle on Monday, February 1, because he was in the middle of a job out of town.

He said he found a vehicle for significantly less than the $25,000 - $30,000 he expected to pay so then decided he wanted to get a new snowmobile and subsequently also decided to purchase a used all-terrain vehicle. [ 39 ] In terms of specifics, the Accused made a deal to purchase a used truck from the Ford dealer in Stephenville on February 1, 2018. He paid a cash deposit of $2,850 on that date. There was work to be done on the truck and the Accused paid $1,497.10 for this work on February 8, 2016 and took possession of the truck on that date.

This additional sum was also paid in cash. [ 40 ] On February 2, 2016, the Accused purchased a new snowmobile and a used all-terrain vehicle from GNR Recreation for $9,365.80 and $4,634.20 respectively. All of these amounts were paid in cash. [ 41 ] It is also my finding that the Accused purchased a used snowmobile from Mr. Leo King on February 2, 2016. This vehicle is covered by Count 3 of the Indictment. In respect of this vehicle, the Accused testified that his son, and not him, had purchased this snowmobile and that the purchase price was $1,000. However, Mr.

King testified at trial and he identified the Accused as the person who bought the snowmobile from him. He testified that he was selling the snowmobile for $4,500 but the Accused asked him for a better price and he ultimately agreed to sell it to him for $4,190. He further testified that it was the Accused who paid him the money for the snowmobile and that he paid cash, mostly fifty dollar bills. Mr. King did testify that the son of the Accused was with the Accused when he came to look at the snowmobile and that the son drove the snowmobile home after it was purchased. [ 42 ] I found Mr.

King to be a very credible and truthful witness and I accept his evidence that it was the Accused who purchased the snowmobile from him and that he did so for the sum of $4,190 and paid cash for same. I reject the testimony of the Accused regarding the purchase of this snowmobile. [ 43 ] Thus, over the course of two days (February 1 and 2, 2016), being the next two business days after he deposited the fraudulent cheque on January 29, 2016, the Accused purchased one used motor vehicle, one new snowmobile, one used snowmobile, and one used all-terrain vehicle.

He paid for all of them in cash spending a total of $22,537.10. [ 44 ] In addition, he made debit card purchases totaling $1,935.15 over the period from January 29, 2016 to February 1, 2016.

The total of his cash and debit card purchases was $24,472.25. [ 45 ] As noted earlier, the Accused withdrew a total of $56,500 in cash from his bank account between January 29, 2016, the date he deposited the fraudulent cheque, and February 2, 2016. [ 46 ] The Accused testified that the cash amounts he withdrew from his bank account after he deposited the fraudulent cheque were placed into envelopes and sent off to an address in Toronto. If this were true, it would mean he would not have had this cash to purchase the vehicles in question.

Like most of the evidence given by the Accused, I do not accept this evidence as true nor does it raise any reasonable doubt in my mind about what happened to the cash the Accused withdrew. It is my conclusion that the Accused kept this cash and used it to purchase the items in question. [ 47 ] The Accused’s evidence about sending off the cash in envelopes to an address given to him by Nino or Gary is inconsistent

with other evidence which is indisputable, such as: a. The Facebook conversations with Nino where what was discussed was the Accused sending her the money by Western Uniontransfer. There was no discussion in those conversations about the Accused sending cash in envelopes. b. The Accused told Nino in a Facebook message on January 29, 2016 that he had received the cheque but had not yet deposited it butwould do so on Monday. In fact, the Accused did deposit the cheque on January 29, 2016 and withdrew $5,000 on that date. He testifiedhe sent this cash off in an envelope to the Toronto address that same day.

Why would the Accused lie about depositing the cheque? If hehad already sent $5,000 in cash to the address, why wouldn’t he have told Nino that rather than saying he was going to deposit thecheque on Monday? c. On Monday, February 1, 2016, he told Gary Smith in an email that he had deposited the cheque but that it would take five days toclear. Why would he lie to Gary Smith about when the cheque was going to clear? At this point the Accused believed the cheque hadcleared. By the date he sent this email he had withdrawn a further $21,500 and by his testimony had sent the cash off to the address asdirected.

Why wouldn’t he have told Nino and/or Gary that he had sent the cash off? d. At no point in time did he mention in the Facebook messages or the emails to Gary Smith that he had sent any cash off. [48] The only evidence about sending cash off in envelopes is from the testimony of the Accused. There is no mention of it in any ofthe Facebook messages or emails entered into evidence.

The conclusion I have reached is that the evidence of the Accused about sendingthe cash off to the Toronto address is a lie, a complete fabrication by the Accused, and I reject it in its entirety. [49] The Accused is asking the Court to believe that it is merely a coincidence that he purchased four vehicles for a total cashpurchase price of $22,537.10 within two business days after he had deposited the fraudulent cheque and begun the withdrawal of cashfrom his bank account based on the deposit of that cheque.

Further, he is asking the Court to believe that these cash purchases were madefrom approximately $30,000 in cash he had saved up. There is no evidence, other than that of the Accused himself, to support this story;however, there is independent and undisputed evidence, as outlined earlier, that the Accused was not in a very strong financial position. Inote from the evidence of Corporal Henley that on February 8, 2016, the Accused was in custody on an unrelated matter and needed bailmoney.

Corporal Henley accompanied the Accused to his home and noted that there was $9,400 in cash which the Accused retrieved atthat time. The total of his cash purchases and cash retrieved from his home on February 8, 2016 was $31,937.10, an amount greater thanwhat he approximated he had in cash savings. [50] As I noted earlier, I found the Accused to be completely lacking in credibility largely because of the inconsistencies in hisevidence and statements given to the police as referred to earlier.

I also found the Accused to be evasive at times when giving hisevidence and at other times to be making it up as he went along (to use the colloquial). I do not believe the Accused had approximately$30,000 in cash which he used to purchase the vehicles. I reject his evidence in this regard in its entirety.

Further, his evidence does notraise any doubt, reasonable or otherwise, in my mind as to the source of the cash used to purchase these vehicles. [51] It is my determination upon consideration of all of the evidence presented at the trial that the only inference that can be drawnis that the Accused used the cash he withdrew after the deposit of the fraudulent cheque to purchase the vehicles covered by Counts 2, 3,4 and 5 of the Indictment. [52] Accordingly, it is my determination that the Crown has proven beyond a reasonable doubt that the Accused was in possessionof each of the items covered by Counts 2, 3, 4 and 5 of the Indictment and that he knew these items had been obtained by thecommission of an offence.

As a result, I find the Accused guilty of each of the charges in Counts 2, 3, 4 and 5 of the Indictment.

summary and conclusion [53] The Crown has established beyond a reasonable doubt all of the essential elements of each of the offences set forth in theIndictment. The Accused testified thus meaning the analysis from R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 isapplicable. However, the application of this analysis is of no benefit to the Accused because his evidence was not believed and neitherhis evidence nor the totality of the evidence caused me to have any reasonable doubt about his guilt on any of the charges set forth in theIndictment. Accordingly, the Court finds the Accused guilty of each of the charges against him. _____________________________ George L. Murphy Justice