Episode F3
Episode F3 — R. v. Théroux: The Modern Fraud Test
41 min · Feb 24, 2023
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Episode F3 — R. v. Théroux: The Modern Fraud Test
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Episode Summary
This episode explains R. v. Théroux, one of the most important Canadian fraud cases. Théroux sets out the modern structure of fraud by separating the offence into the prohibited act and the required mental state. The case explains that fraud requires dishonest conduct and deprivation or risk of deprivation, along with the accused's subjective awareness of the prohibited conduct and its possible consequences. A failed business deal is not automatically fraud — the evidence must show the dishonest act, the deprivation or risk, and what the accused knew at the relevant time.
What You'll Learn
- • The two-element Théroux framework
- • Subjective knowledge of the act and of the risk
- • Distinguishing business failure from fraud
Key Investigator Takeaways
- • Prove the dishonest act with documents and communications
- • Prove subjective knowledge through conduct, not only words
- • Don't conflate loss with criminal fraud
Cases Discussed
R v Théroux
[1993] 2 SCR 5
Elements of fraud — dishonest act and subjective knowledge
R v Olan
[1978] 2 SCR 1175
Whether risk of economic loss satisfies the deprivation element
R v Zlatic
[1993] 2 SCR 29
Whether reckless conduct can amount to 'other fraudulent means'
R v Riesberry
2015 SCC 65
Causation and risk of deprivation in fraud
Visual Mind Map
R. v. Théroux
Modern fraud test
Actus reus
Prohibited conduct
Deceit
Express misrepresentation
Falsehood
Known-untrue statements
Other fraudulent means
Dishonest conduct
Deprivation
Loss to victims
Risk to pecuniary interests
Exposure to loss
Mens rea
Subjective awareness
Subjective knowledge
What accused knew
Knowledge of prohibited act
Awareness of conduct
Knowledge of possible deprivation
Awareness of risk
Business failure vs criminal fraud
Loss alone is not fraud
Investigator takeaway
Prove act + knowledge
Transcript
Show transcript
Episode F3 walks through R. v. Théroux and the modern fraud test…