Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the nova scotia supreme court, appeal division
Criminal law ‑‑ Fraud ‑‑ Accused charged with defrauding bank "of a sum of money exceeding $1,000" ‑‑ Whether Crown had to prove deprivation of sum exceeding $1,000 to establish fraud.
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1992), 117 N.S.R. (2d) 22, 324 A.P.R. 22, 77 C.C.C. (3d) 445, dismissing the accused's appeal from his conviction on a charge of fraud. Appeal dismissed, Lamer C.J. and L'Heureux‑Dubé and Sopinka JJ. dissenting.
Douglas A. Caldwell, Q.C., and Peter M. Rogers, for the appellant.
John C. Pearson, for the respondent.
The judgment of the Court was delivered orally by
Lamer C.J. ‑‑ Justices La Forest, Gonthier, Cory and McLachlin, in substantial agreement with Mr. Justice Chipman of the Court of Appeal, would dismiss the appeal. The Chief Justice, Justices L'Heureux‑Dubé and Sopinka concurring, would render judgment as follows:
I am satisfied that the Crown has prima facie established that by deceit, that is the continuation of the payments, the appellant obtained an extension of credit in excess of $1,000. But that is not the way in which the indictment was framed.
The remaining question is whether the accused was misled in his defense. The onus to satisfy us of this is upon the Crown, who chose not to amend the indictment. I cannot say the Crown has.
Therefore, the Chief Justice and L'Heureux‑Dubé and Sopinka JJ. would allow the appeal and order a new trial on the amended indictment.
The appeal is dismissed, the Chief Justice and L'Heureux‑Dubé and Sopinka JJ. dissenting.
Judgment accordingly.
Solicitors for the appellant: Patterson Kitz, Truro, Nova Scotia.
Solicitor for the respondent: John C. Pearson, Halifax.
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