R. v. Gopher (G.) et al., (2005) 265 Sask.R. 1 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 26, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 265 Sask.R. 1 (QB);2005 SKQB 243

R. v. Gopher (G.) (2005), 265 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JN.009

Her Majesty the Queen (Crown) v. Gabriel Gopher, Archie Moccasin and Mervin Night (accused)

(2004 C.N.J. No. 12; 2005 SKQB 243)

Indexed As: R. v. Gopher (G.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Baynton, J.

May 26, 2005.

Summary:

The accused were charged with criminal breach of trust and fraud. The Crown alleged that they defrauded the Saulteaux First Nation of over a million dollars of Treaty Land Entitlement trust funds.

The Saskatchewan Court of Queen's Bench found the accused guilty of both offences. The court entered a judicial stay of the fraud charges on the basis of R. v. Kienapple (i.e. breach of trust and fraud arose out of same facts).

Criminal Law - Topic 1928

Offences against property - Breach of trust - What constitutes - The Saskatchewan Court of Queen's Bench stated that the offence of criminal breach of trust (Criminal Code, s. 336) was basically the offence of fraud that had the additional element of a breach of trust by means of that fraud - See paragraph 149.

Criminal Law - Topic 1928

Offences against property - Breach of trust - What constitutes - Three accused were charged with criminal breach of trust and fraud - The Crown alleged that they defrauded the Saulteaux First Nation of over a million dollars of Treaty Land Entitlement (TLE) trust funds - These were funds paid by the Government of Canada to the Saulteaux pursuant to complex TLE agreements that specified the trust conditions under which the funds were paid and the conditions upon which they could be expended - The three accused were: Gopher (Saulteaux's Band Chief), Moccasin (a trustee of the funds) and Night (a Band Councillor who held the TLE portfolio) - The Saskatchewan Court of Queen's Bench convicted the accused - Although Gopher and Night were not trustees of the funds, they were constructive trustees of the trust funds once they were deposited in another account - They were also parties to the breaches of trust committed by Moccasin as a formally appointed trustee in causing illegal transfers to be made from the trust account to another account - The accused's actions deprived Saulteaux of a significant portion of the trust funds - The accused were intelligent and capable of comprehending and understanding the complex agreements and trust provisions.

Criminal Law - Topic 1929

Offences against property - Breach of trust - Trustee defined - [See second Criminal Law - Topic 1928 ].

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - [See second Criminal Law - Topic 1928 ].

Cases Noticed:

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 144].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C 161, refd to. [para. 144].

R. v. Trotchie, [1994] 3 W.W.R. 201; 116 Sask.R. 161; 59 W.A.C. 161 (C.A.), refd to. [para. 146].

R. v. Schafer (R.C.), [2001] 4 W.W.R. 303; 195 Sask.R. 161; 2000 SKQB 177, refd to. [para. 146].

R. v. McNamara (J.) (2003), 229 Sask.R. 139; 2003 SKQB 13 (Q.B.), refd to. [para. 146].

R. v. Olan, Hudson and Hartnett, [1978] 2 S.C.R. 1175; 21 N.R. 50, refd to. [para. 147].

R. v. Sopko and Duncan (1991), 74 Man.R.(2d) 34 (Q.B.), refd to. [para. 149].

R. v. Petricia (1974), 17 C.C.C.(2d) 27 (B.C.C.A.), refd to. [para. 151].

R. v. Rosen, [1985] 1 S.C.R. 83; 57 N.R. 13, refd to. [para. 152].

R. v. Hammerling, [1981] 4 W.W.R. 741; 9 Man.R.(2d) 86 (C.A.), refd to. [para. 153].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 153].

Counsel:

P. Polishchuk, for the Crown;

M. Nolin, for Gabriel Gopher;

P. Abrametz, Jr., for Archie Moccasin;

A. Mason, for Mervin Night.

This matter was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following judgment on May 26, 2005.