R. v. Fischer, (1987) 53 Sask.R. 263 (CA)

• Judge: Tallis, Cameron and Wakeling, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 22, 1987
• Jurisdiction: Saskatchewan
• Citations: (1987), 53 Sask.R. 263 (CA);1987 CanLII 4858 (SK CA);31 CCC (3d) 303;53 Sask R 263

R. v. Fischer (1987), 53 Sask.R. 263 (CA)

MLB headnote and full text

R. v. Fischer

(No. 2343)

Indexed As: R. v. Fischer

Saskatchewan Court of Appeal

Tallis, Cameron and Wakeling, JJ.A.

January 22, 1987.

Summary:

The accused deposited a cheque belonging to the company with which he was employed in a bank account of which he was the sole proprietor. The accused's employment was terminated and the diversion of the monies was discovered. The accused was convicted of theft over $200.00. The accused appealed his conviction.

The Saskatchewan Court of Appeal allowed the appeal. The court held that the defence's position was not properly put to the jury and that the defect could not be saved by s. 613(1)(b)(iii) of the Code.

Criminal Law - Topic 1703

Theft - Special types - By a person required to account - The Saskatchewan Court of Appeal discussed the offence of theft by a person required to account in s. 290 of the Criminal Code and stated that the obligation to account for funds did not necessarily cease with a termination of employment - See paragraph 32.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - An accused deposited a cheque belonging to the company with which he was employed in a bank account of which he was the sole proprietor - The accused was convicted of theft over $200.00 despite the fact that he maintained that he never had any intention of stealing the money - The Saskatchewan Court of Appeal allowed the accused's appeal - The court held that the defence's position was not properly put to the jury and that the defect could not be saved by s. 613(1)(b)(iii) of the Criminal Code.

Criminal Law - Topic 4735

Procedure - Information or indictment - Form and content - Duplicity - An accused was charged with theft over $200 - The Crown did not limit itself by particulars with respect to only one mode of committing the offence; it put the accused on notice that it would rely upon alternate paths to seek a conviction - The accused argued that the indictment was duplicitous - The Saskatchewan Court of Appeal held that the indictment was not duplicitous because it referred to an alternative mode of committing theft rather than a separate offence for the purposes of the duplicity rule - See paragraph 13.

Cases Noticed:

R. v. Mckenzie, [1972] S.C.R. 409, consd. [para. 9].

R. v. Lowden, [1982] 2 S.C.R. 60; 42 N.R. 616; 68 C.C.C.(2d) 531, folld. [para. 11].

R. v. Thatcher (1986), 24 C.C.C.(3d) 449; 46 Sask.R. 241, refd to. [para. 12].

R. v. R.I.C. (1986), 17 O.A.C. 354, refd to. [para. 15].

R. v. Lilly, 5 C.C.C.(3d) 1; 48 N.R. 140, refd to. [para. 17].

R. v. Legebokoff and Legebokoff, 14 Sask.R. 213, refd to. [para. 18].

Azoulay v. R., [1952] S.C.R. 495, folld. [para. 23].

R. v. Hay (1982), 30 C.R.(3d) 37, refd to. [para. 23].

R. v. Linney, [1978] 1 S.C.R. 646; 13 N.R. 217, folld. [para. 24].

R. v. Sargent, 5 C.C.C.(3d) 429, folld. [para. 24].

R. v. Lawrence, [1982] A.C. 510, folld. [para. 24].

R. v. DeMarco (1973), 13 C.C.C.(2d) 369, refd to. [para. 29].

R. v. Dalzell (1983), 6 C.C.C.(3d) 112, refd to. [para. 29].

R. v. Livingston (1985), 39 Sask.R. 45, refd to. [para. 31].

R. v. Norris (1985), 39 Sask.R. 70, refd to. [para. 31].

R. v. Miller, [1983] 1 All E.R. 978, refd to. [para. 33].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 24(1) [para. 30]; sect. 24(2) [para. 30]; sect. 212(a) [para. 12]; sect. 283 [paras. 9, 11, 12]; sect. 290 [paras. 9 to 13, 32]; sect. 510(1) [para. 14]; sect. 510(2)(b) [para. 9]; sect. 613(1)(b)(iii) [paras. 20, 26, 29].

Counsel:

R.J. Rath and J.M. Williams, for the appellant;

G.B. Lepp, for the respondent.

This case was heard before Tallis, Cameron and Wakeling, JJ.A., of the Saskatchewan Court of Appeal.

On January 22, 1987, Tallis, J.A., delivered the following judgment for the Saskatchewan Court of Appeal.