R. v. Feddema (S.P.),

• Judge: McFadyen,Russell,Wittmann
• Neutral Citation: 2005 ABCA 236
• Subject Matter: CRIMINAL LAW
• Citation: (2005), 367 A.R. 230 (CA),2005 ABCA 236,367 AR 230,(2005), 367 AR 230 (CA),367 A.R. 230
• Date: 05 July 2005
• Court: Court of Appeal (Alberta)

R. v. Feddema (S.P.) (2005), 367 A.R. 230 (CA);

    346 W.A.C. 230

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JL.035

Her Majesty The Queen (respondent) v. Susan Patricia Feddema (appellant)

(0303-0374-A3: 2005 ABCA 236)

Indexed As: R. v. Feddema (S.P.)

Alberta Court of Appeal

McFadyen and Russell, JJ.A., and Wittmann, A.C.J.Q.B.(ad hoc)

July 5, 2005.

Summary:

The accused was convicted of three counts of forgery and one count of fraud over $5,000. The accused, as director of a vocational institute, was found to have aided, abetted or counselled students to submit false information to obtain increased student grant monies. The accused appealed, submitting that the verdicts were unreasonable and unsupported by the evidence.

The Alberta Court of Appeal allowed the appeal on the ground that the verdicts were unreasonable and unsupported by the evidence. Acquittals were substituted on two forgery charges and a new trial was ordered for fraud and the remaining forgery charge.

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - The accused was the director of a vocational institute who allegedly told a student receiving grant monies that it was okay to continue to go to school while she was working and to not report the income she earned - A student was permitted to earn up to $200 per month working without having funding reduced or eliminated - The trial judge determined that, at the very least, the accused was wilfully blind to the fact of the student's employment - The Alberta Court of Appeal set aside the fraud conviction and ordered a new trial - A failure to disclose material facts could constitute fraud - The student had a duty to disclose her employment, which constituted a change in financial circumstances - However, it was not established that the accused had a legislative or other duty to report the student's employment or expel her from the institute for failing to meet attendance requirements - There was also insufficient evidence that the accused was a party to the student's offence or became an accessory after the fact in covering up the student's lack of attendance - These issues would have to be canvassed at a new trial - See paragraphs 48 to 66.

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - The Alberta Court of Appeal stated that "a failure to disclose material facts can amount to fraudulent conduct. ... The accused must be under some duty to disclose the material facts before inactions or nondisclosure will constitute fraud. Such a duty to disclose may exist by reason of the accused's relationship with the victim of the alleged fraud ... Legislation may create a duty to disclose. The failure to report in breach of such statutory requirements may constitute fraud." - See paragraphs 54 to 55.

Criminal Law - Topic 2010

Fraudulent transactions - Fraud - Other fraudulent means - The Alberta Court of Appeal stated that "to establish fraud, the Crown must prove that the accused deprived the public or a person of property, money, valuable security or any service by the use of deceit, falsehood or other fraudulent means. The phrase 'other fraudulent means' includes means that are not in the nature of a falsehood or deceit; it encompasses all other means which can properly be stigmatized as dishonest" - See paragraph 53.

Criminal Law - Topic 2743

Attempts, conspiracies, accessories and parties - Parties to offences - Aiding and abetting where principal offender not charged or convicted - The accused was convicted of three counts of forgery and one count of fraud over $5,000 - The accused, as director of a vocational institute, was found to have aided, abetted or counselled students to submit false information to obtain increased student grant monies - The accused appealed, submitting that she could not be convicted as a party to the offence of forgery or fraud where none of the students were convicted - Section 23.1 of the Criminal Code provided that an accused could be found guilty "notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence" - The accused conceded that she could be convicted as a party to the offence of forgery even if the principal to the offence could not be convicted because of a lack of the requisite intent - The Alberta Court of Appeal stated that "we do not have to finally decide this issue", as the court set aside the convictions on another ground - See paragraphs 19 to 21.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 13].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417, refd to. [para. 16].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 32 C.R.(5th) 1, refd to. [para. 17].

R. v. Olan, Hudson and Hartnett, [1978] 2 S.C.R. 1175; 21 N.R. 504; 5 C.R.(3d) 1, refd to. [para. 53].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C. 161, refd to. [para. 53].

R. v. Emond (1997), 117 C.C.C.(3d) 275 (Que. C.A.), refd to. [para. 54].

R. v. Monkman (1980), 4 Man.R.(2d) 352 (Co. Ct.), refd to. [para. 55].

R. v. D'Amour (M.) (2002), 163 O.A.C. 164; 166 C.C.C.(3d) 477 (C.A.), refd to. [para. 55].

R. v. Easte (L.S.), [2002] B.C.T.C. 615; 2002 BCSC 615, refd to. [para. 55].

R. v. Vanderveen (J.), [2002] B.C.T.C. 236; 2002 BCSC 236, refd to. [para. 55].

R. v. Curran (1977), 7 A.R. 295; 38 C.C.C.(2d) 151 (C.A.), refd to. [para. 62].

R. v. Dunlop, [1979] 2 S.C.R. 881; 27 N.R. 153; 8 C.R.(3d) 349, refd to. [para. 62].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 23.1 [para. 20].

Counsel:

G.B. Lepp, Q.C., for the respondent;

A.D. Pringle, Q.C., for the appellant.

This appeal was heard on December 2, 2004, before McFadyen and Russell, JJ.A., and Wittmann, A.C.J.Q.B.(ad hoc), of the Alberta Court of Appeal.

The following memorandum of judgment was delivered by the Court and filed on July 5, 2005.