336

Criminal breach of trust

336 Every one who, being a trustee of anything for the use or benefit, whether in whole or in part, of another person, or for a public or charitable purpose, converts, with intent to defraud and in contravention of his trust, that thing or any part of it to a use that is not authorized by the trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Annotations | French

  • Section 336

     

  • The term ‘trustee’ is defined in section 2 of the Criminal Code and includes any person who has been made a trustee by virtue of any Act, provincial law, deed, will or instrument whether orally or in writing. Basic duties and obligations of trusted include but are not limited to the following:

     

    • “The trustees' duty to the beneficiaries of the Trust is one of the law's highest and most demanding duties.

       

    • The trustees have a duty to administer the Trust in strict conformity to the terms of the Trust.

       

    • All trustees have a duty of loyalty that binds them at all times to act in the best interests of the beneficiaries. Where the personal interests of the trustee and the interests of the Trust or the beneficiaries of the Trust come into conflict or potential conflict, the trustees must prefer the interests of the Trust and beneficiaries to their own personal interests.

       

    • Trustees have a duty to keep records and render accounts. They must keep clear and accurate records of transactions affecting the trust. If a trustee fails to account properly, all doubts are resolved against the trustee. To the extent there are any deficiencies in a trustee's accounting, the trustee will be held liable. Mere failure to account shifts the burden to the trustee to justify the difference or face liability.

       

    • A duty to furnish information to the beneficiaries including information regarding all material facts, transactions and accountings.

       

    • A duty to exercise reasonable care and skill”: R v Bird, 2013 SKQB 343 (CanLII) at para. 88

       

  • Criminal breach of trust is at it’s core a fraud with the additional element of breach of trust: R. v. Gopher, 2005 SKQB 243 (CanLII) at para. 149.

     

  • The essential elements of the guilty act (actus reus) of offence of criminal breach of trust are as follows:

     

  • A breach of duty, which “is established by proof that the accused did an act or failed to do an act contrary to the duty imposed;

     

  • That a reasonable person would consider that the breach of duty was not done in good faith, in the interest of the beneficiary of the trust which can be established by proof that:

     

    • The accused derived a personal benefit from his conduct;

       

    • The accused's conduct caused loss or prejudice to the beneficiary; or

       

    • The accused's conduct was not otherwise in the beneficiary's interest”: R v Bird, 2013 SKQB 343 (CanLII) at para. 81.

       

  • Criminal breach of trust is a specific intent offence that requires proof that the accused acted with the intent to defraud. The specific intent to defraud can be established by proof that the accused had:

     

    • Knowledge or was reckless as to the facts which constitute a “deceit”, a “falsehood” or “other fraudulent means”; and

       

    • Foresight or was recklessness as to the facts which are found in law to constitute “deprivation”: R v Bird, 2013 SKQB 343 (CanLII) at para. 82

       

  • An accused’s belief that the conduct is not dishonest or will not cause a deprivation is not a defence: R v Bird, 2013 SKQB 343 (CanLII) at para. 82.

     

  • Where the accused is the sole perpetrator of the offence, they must be a trustee. However, an accused person need not be a trustee to commit this offence as an aider or abettor” R v Rosen, 1985 CanLII 58 (SCC) at paras. 4-5.

     

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