The following is the judgment delivered by
The Court‑‑The appellant, Mr. Rosen, was indicted and convicted in County Court in Ontario by Locke Co. Ct. J. of the following counts:
1. HERSHEY ROSEN stands charged that he during the years 1974, 1975, 1976, at the Municipality of Metropolitan Toronto in the Judicial District of York, and elsewhere in the Province of Ontario, by deceit, falsehood or other fraudulent means, defrauded Benjamin Pape Associates Limited, Heller‑Natofin (Ontario) Limited, and the Bank of Nova Scotia of property or funds or other valuable securities having a value of $1,200,000.00 in money more or less, by representing that the said property or funds or other valuable securities would be used for construction of buildings, on Whiteoaks Boulevard and Marlborough Drive in Oakville, Ontario, by Greater National Building Corporation, contrary to the Criminal Code .
HERSHEY ROSEN stands further charged that he during the years 1974, 1975 and 1976, at the Municipality of Metropolitan Toronto in the Judicial District of York, and elsewhere in the Province of Ontario being a trustee of funds for the use or benefit of workmen and suppliers of materials to residential buildings being constructed in Oakville, Ontario converted, with intent to defraud and in violation of the trust, the said funds to a use that was not authorized by the trust, contrary to the Criminal Code .
HERSHEY ROSEN stands further charged that he during the years 1974, 1975 and 1976, at the Municipality of Metropolitan Toronto in the Judicial District of York and elsewhere in the Province of Ontario stole funds, the property of Greater National Building Corporation, of a value exceeding two hundred dollars, contrary to the Criminal Code .
2. Mr. Rosen's appeal to the Ontario Court of Appeal was dismissed. There were no reasons given. The appellant was granted leave to this Court on the following two questions of law:
1. Did the Honourable Court of Appeal of Ontario err in law in holding that the appellant was a trustee within the definition of trustee in the Mechanics' Lien Act (R.S.O. 1970, c. 267, as amended by S.O. 1975, c. 43) and therefore under the Criminal Code ?
2. Did the Honourable Court of Appeal of Ontario err in law by upholding verdicts that are incompatible and self‑contradictory in their fundamental reasons?
3. As regards the count of "breach of trust", the respondent says the conviction should be upheld on the basis that Rosen was "a trustee" or, alternatively, on the basis that he was an "aider and abettor" to Greater National Building Corporation. We are all of the view that Rosen was not a trustee, and the conviction cannot be supported on that basis.
However, the appellant needed not be a trustee to commit the offence of breach of trust. By causing the trustee company to breach its trust he, by the operation of s. 21 of the Criminal Code, R.S.C. 1970, c. C‑34, could have committed the offence. But he was not charged with that offence in that way, but with that of breach of trust, "being a trustee". Having charged the appellant with "being a trustee", the Crown thereby undertook to prove that averment.
There is no doubt as to the soundness of the proposition that an aider and abettor may be charged and convicted as a principal. Mr. Rosen, charged with breach of trust could have stood convicted. But if particulars are volunteered or ordered by the Court, they must be met. To find otherwise is, in most cases and is in this case, to mislead an accused, not as regards the offence he committed, but as regards the actus reus the Crown is undertaking to prove. That conviction should therefore be quashed.
The other convictions should stand as we find no merit in the other points raised by the appellant. Indeed, there is no conflict left, if any ever existed, between the convictions for theft and fraud. The fraud was committed and consummated prior to the commencement of the theft.
The appeal is allowed in part, the conviction for breach of trust is quashed and an acquittal on that count is entered, but the appellant stands convicted of theft and fraud.