Present: Beetz, McIntyre, Chouinard*, Lamer and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for quebec
Criminal law ‑‑ Fortune telling ‑‑ Defence of honest belief ‑‑ No basis for accused's that she had special powers to predict future ‑‑ Defence of honest belief not open on the facts of this case ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 323(b).
The Municipal Court of Montréal convicted appellant of fortune telling, contrary to s. 323 (b) of the Criminal Code which provides that "Every one who fraudulently...undertakes, for a consideration, to tell fortunes... is guilty of an offence punishable on summary conviction". She testified at trial that she enjoyed special powers to predict the future, but the judge did not believe her. On a trial de novo, the Superior Court judge quashed the conviction and entered an acquittal. The Court of Appeal restored the conviction.
Held: The appeal should be dismissed.
Per McIntyre, Lamer and La Forest JJ.: Given the trial judge's finding that the accused knew full well that she had no basis for her claim to be able to predict people's futures, the defence of honest belief was not open on the facts of this case.
Per Beetz J.: I agree with the conclusion of McIntyre, Lamer and La Forest JJ. that the appeal should be dismissed.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, s. 323(b).
APPEAL from a judgment of the Quebec Court of Appeal (1984), 17 C.C.C. (3d) 283, allowing the Crown's appeal from a judgment of Paradis J.1, allowing the accused's appeal on a trial de novo from her conviction for fortune telling contrary to s. 323 (b) of the Criminal Code . Appeal dismissed.
1 Mtl. Sup. Ct., No. 500‑36‑000016‑801, June 16, 1980.
Ivan Lerner, for the appellant.
Germain Tremblay and Jean‑Pierre Bessette, for the respondent.
The judgment of McIntyre, Lamer and La Forest JJ. was delivered by
1. McIntyre, Lamer and La Forest JJ.‑‑The appellant was charged with having fraudulently undertaken, for a consideration, to tell fortunes, an offence punishable on summary conviction under s. 323 (b) of the Criminal Code .
2. Section 323(b) states:
323. Every one who fraudulently
...
(b) undertakes, for a consideration, to tell fortunes,
...
is guilty of an offence punishable on summary conviction.
3. The appellant was tried before Judge Tourangeau of the Montréal Municipal Court. The evidence established that she had told the fortune of a police officer for $15, and that she regularly told fortunes for a small fee, usually $15. She testified to the fact that she had enjoyed, since her childhood, special powers to predict the future. The trial judge found that what she believed was irrelevant, and in any event he disbelieved her. He read down the meaning usually given to the word "fraudulently" in a charging section and said that it was there to ensure that people who do not purport to enjoy special powers and who do it for amusement, as one often sees in tombolas or amusement parks, not be convicted.
4. In appeal, de novo, the conviction was quashed and an acquittal entered. The Superior Court judge merely stated that there was no evidence that she had said anything fraudulent.
5. The Court of Appeal restored the conviction.
6. The issue involves the meaning to be given to the word "fraudulently" and its effect in the section, and in particular whether an accused should be convicted of fraudulently undertaking for a consideration to tell fortunes if he honestly believed that he had the power to tell fortunes. However, given the finding of fact by the trial judge that [TRANSLATION] "The accused knows full well that she has no basis for her claim to be able to predict what will happen in people's futures", we are agreed that the defence of honest belief is not open on the facts of this case.
7. The appeal is dismissed.
The following are the reasons delivered by
8. Beetz J.‑‑I agree with the conclusion of McIntyre, Lamer and La Forest JJ. that the appeal should be dismissed.
Appeal dismissed.
Solicitor for the appellant: Ivan Lerner, Montréal.
Solicitors for the respondent: Germain Tremblay and Jean‑Pierre Bessette, Montréal.
Email this Content