Lake v. The Queen

judgments in R. v. Scott', Ontario Court of Appeal, as confirmed in this Court in the same volume at p. 187, where at p. 186 Magee J. said:

Spence J.

The amount charged as being stolen $7,835, no doubt corresponds with the total of the three credits; but if, instead of five cheques amounting to $755, the accused had cashed one, two, or three cheques for $7,000 in all, three days after the fraudulent entries, could it be said that, although his act amounted to theft, proof could not be given of it? What the Crown set out to prove, as I venture to think, is that Scott's employers had been defrauded out of $7,835, or some greater or less sum, by some act which amounted to theft. The evidence might fail to shew theft at all. It would be sufficient if part were stolen. The Criminal Code, sec. 857, allows proof of three distinct charges of theft. and the decision of the Ontario Court of Appeal in R. v. Castle', where at p. 80, Rowell C.J.O. said:

In reference to the first ground of appeal, it is quite clear that a person accused of theft can be convicted upon an indictment charging theft upon proof of theft of a smaller sum than that charged in the indictment: Rex v. Scott (1920),

57 D.L.R. 309, 34 Can. C.C. 180, 48 O.L.R. 452, affirmed in the Supreme Court, 58 D.L.R. 242, 34 Can. C.C. 187.

The question arises whether this Court in dismissing the appeal and confirming the conviction should amend the latter. I am of the opinion that it is proper to do so. It would appear that upon the evidence the appellant should only have been convicted of obtaining by false pretences the amount of $56. The charge as laid contained a reference to a figure of about $285. This Court has the jurisdiction to make the appropriate amendment by virtue of s. 600(1) of the Criminal Code which provides:

600. (1) The Supreme Court of Canada may, on an appeal under this part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

The Court of Appeal for Ontario has power to amend the conviction to set out the smaller amount by virtue of s. 592(3) of the Criminal Code which provides:

592. (3) Where a court of appeal dismisses an appeal under subparagraph (i) of paragraph (b) of subsection it may substitute the 1 (1920), 34 C.C.C. 180, 48 O.L.R. 452, 57 DL.R. 309.

2 34 C.C.C. 187, 58 D.L.R. 242.

(1937), 68 C.C.C. 78, [19371 O.W.N. 245.

R.C.S.

The paragraph referred to therein, i.e., 592(1) (b) (i), provides:

1. In R. v. Norcross', (B.C.C.A.), the Court amended a conviction of theft by reducing the amount mentioned in the charge.

I would therefore dismiss the appeal. Acting under the provisions of the Criminal Code, I would substitute a conviction that the appellant between the 6th day of June

1966 and the 28th day of July 1966, at the City of Ottawa, in the County of Carleton, did unlawfully obtain the sum of $56 from Wilfred Bauer by false pretences and with intent to defraud, contrary to s. 304(1) (a) of the Criminal

Code.

Appeal dismissed.

County of Carleton, did unlawfully obtain a sum of or about $285.00 from Wilfred Bauer, by false pretences and with intent to defraud, contrary to section 304(1)(a) of the Criminal Code.

The leave to appeal granted by this Court was upon the S following questions of law:

1. Was there any evidence on which it was open to the learned Magistrate to hold that there was a false pretence made by the appellant which induced Wilfred Bauer to pay money to him?

2. Was there any evidence on which it was open to the learned Magistrate to hold that the appellant had the intent to defraud Wilfred Bauer?

3. Was there any evidence on which it was open to the learned Magistrate to hold that Wilfred Bauer was defrauded of anything? It is not necessary for these purposes to recite the evidence in any detail, and it is sufficient to say that there was evidence on which the Magistrate could find reasonably that the appellant did obtain from the said Wilfred Bauer by false pretences the sum of about $56, the said false pretences being that the appellant falsely represented himself to be a bailiff of the Division Court at Ottawa acting on a process of that Court and in particular that he falsely represented that he was empowered to and did take a bond from the said Wilfred Bauer and demanded and obtained certain amounts of money for the "registration" of the said bond as fees therefor.

It is true that the Magistrate said in giving judgment after a recess:

Continuing my remarks regarding judgment in this case, and considering the evidence I would have to find that the whole of the monies obtained by Mr. Lake in this case-some S285.00-that all of that money was obtained by false pretences, and I say this because of the use of the word "bailiff" by the accused when he wasn't a bailiff and knew it. Although this Court is not ready to affirm the conviction as to the obtaining by false pretences of the whole $285, it is apparent that the Magistrate had earlier in his reasons addressed his mind to the obtaining by false pretences of the smaller sum only when he said:

I find him guilty of obtaining funds by false pretences, and in particular, monies pertaining to the bond, six dollars whatever it was on this occasion, and the monies listed on those receipts for costs. and that therefore the conviction for obtaining the smaller amount by false pretences should be confirmed. That such a course is a proper one is, I think, demonstrated by the S.C.R.

[19691 judgments in R. v. Scott', Ontario Court of Appeal, as confirmed in this Court in the same volume at p. 187, where at p. 186 Magee J. said:

Spence J.

The amount charged as being stolen $7,835, no doubt corresponds with the total of the three credits; but if, instead of five cheques amounting to $755, the accused had cashed one, two, or three cheques for $7,000 in all, three days after the fraudulent entries, could it be said that, although his act amounted to theft, proof could not be given of it? What the Crown set out to prove, as I venture to think, is that Scott's employers had been defrauded out of $7,835, or some greater or less sum, by some act which amounted to theft. The evidence might fail to shew theft at all. It would be sufficient if part were stolen. The Criminal Code, sec. 857, allows proof of three distinct charges of theft. and the decision of the Ontario Court of Appeal in R. v. Castle', where at p. 80, Rowell C.J.O. said:

In reference to the first ground of appeal, it is quite clear that a person accused of theft can be convicted upon an indictment charging theft upon proof of theft of a smaller sum than that charged in the indictment: Rex v. Scott (1920),

57 D.L.R. 309, 34 Can. C.C. 180, 48 O.L.R. 452, affirmed in the Supreme Court, 58 D.L.R. 242, 34 Can. C.C. 187.

The question arises whether this Court in dismissing the appeal and confirming the conviction should amend the latter. I am of the opinion that it is proper to do so. It would appear that upon the evidence the appellant should only have been convicted of obtaining by false pretences the amount of $56. The charge as laid contained a reference to a figure of about $285. This Court has the jurisdiction to make the appropriate amendment by virtue of s. 600(1) of the Criminal Code which provides:

600. (1) The Supreme Court of Canada may, on an appeal under this part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

The Court of Appeal for Ontario has power to amend the conviction to set out the smaller amount by virtue of s. 592(3) of the Criminal Code which provides:

592. (3) Where a court of appeal dismisses an appeal under subparagraph (i) of paragraph (b) of subsection it may substitute the 1 (1920), 34 C.C.C. 180, 48 O.L.R. 452, 57 DL.R. 309.

(1920), 34 C.C.C. 187, 58 D.L.R. 242.

(1937), 68 C.C.C. 78, [19371 O.W.N. 245.

R.C.S.

The paragraph referred to therein, i.e., 592(1) (b) (i), provides:

1. In R. v. Norcross', (B.C.C.A.), the Court amended a conviction of theft by reducing the amount mentioned in the charge.

I would therefore dismiss the appeal. Acting under the provisions of the Criminal Code, I would substitute a conviction that the appellant between the 6th day of June

1966 and the 28th day of July 1966, at the City of Ottawa, in the County of Carleton, did unlawfully obtain the sum of $56 from Wilfred Bauer by false pretences and with intent to defraud, contrary to s. 304(1) (a) of the Criminal

Code.

Appeal dismissed.

Solicitors for the appellant: Gowling, MacTavish,

Osborne & Henderson, Ottawa.

Solicitor for the respondent: The Attorney General for

Ontario.

Cases cited

Statutes and regulations cited