Proving Deprivation in Criminal Fraud: Has the Court in R. c. Landry Cast the Net Too Wide?

Abstract

There can be no fraud without deprivation. This trite limiting principle is a universally-accepted bedrock of the offence of criminal fraud under s. 380(1) of the Criminal Code. The Quebec Court of Appeal’s recent split decision in R. c. Landry, suggests that even a remote and tenuous risk of financial harm can suffice. But perhaps more troubling is the point at which the majority holds that a risk of harm materializes for the purpose of assessing deprivation at the actus reus stage. According to the majority, it is not once the fraudulent scheme is completed, but rather at the exact moment of the dishonest act. In this piece, I argue that the majority of the Court of Appeal’s approach is incorrect and I instead suggest that the dissenting judgment of Madam Justice Cotnam is more consistent with binding jurisprudence, and that the majority’s decision will have sweeping implications. Most importantly of which will be to further broaden the concept of deprivation to include an even wider scope of conduct and risk of pecuniary harm. I conclude by suggesting that the majority’s analysis to assessing deprivation at the actus reus stage will largely leave little room for the offence of attempt fraud.