R. v. Lord (E.K.), (2013) 408 N.B.R.(2d) 220 (CA)

• Judge: Deschênes, Richard and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 21, 2013
• Jurisdiction: New Brunswick
• Citations: (2013), 408 N.B.R.(2d) 220 (CA);2013 NBCA 51

R. v. Lord (E.K.) (2013), 408 N.B.R.(2d) 220 (CA);

    408 R.N.-B.(2e) 220; 1058 A.P.R. 220

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. SE.009

Renvoi temp.: [2013] N.B.R.(2d) TBEd. SE.009

Her Majesty the Queen (appellant) v. Everett Kenneth Lord (respondent)

(138-12-CA; 2013 NBCA 51)

Indexed As: R. v. Lord (E.K.)

Répertorié: R. v. Lord (E.K.)

New Brunswick Court of Appeal

Deschênes, Richard and Quigg, JJ.A.

September 5, 2013.

Summary:

Résumé:

The accused, on behalf of his small contracting company, entered into a fixed-price contract to build a new home for the complainants, who already owned the lot on which the home would be built. In connection with that project, the accused was charged with four specific counts of criminal fraud. The accused denied any criminal conduct, alleging that any issues between him and the complainants should be resolved through civil litigation.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 396 N.B.R.(2d) 96; 1024 A.P.R. 96, acquitted the accused of three counts and convicted him of one count.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 399 N.B.R.(2d) 388; 1035 A.P.R. 388, sentenced the accused to one year of probation. The Crown appealed the accused's acquittal on the first count.

The New Brunswick Court of Appeal dismissed the appeal.

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - The accused, on behalf of his small contracting company, entered into a fixed-price contract to build a new home for the complainants, who already owned the lot on which the home would be built - In connection with that project, the accused was charged with four specific counts of criminal fraud - The Queen's Bench trial judge acquitted the accused of fraud by failing to register the home under the New Home Warranty Program - Such warranty could be arranged up until the completion of construction - When the complainants asked the accused about that warranty protection before they released a progress payment to him, he responded in a letter - The judge held that what the accused wrote in the letter concerning the registration of the home under the Atlantic Home Warranty Program could be summarized as indicating that he had optimistic intentions - The judge was not persuaded beyond a reasonable doubt that the accused was fraudulently dishonest regarding that registration - The Attorney General appealed the acquittal on this count - The New Brunswick Court of Appeal dismissed the appeal - Section 676(1)(a) of the Criminal Code limited appeals by the Attorney General against verdicts of acquittal to questions of law alone - The judge's determination that the alleged fraud was not proven beyond a reasonable doubt was a finding of fact - That finding might have been incorrect but, if that were the case, the error would be one of fact, not law.

Criminal Law - Topic 4859

Appeals - Indictable offences - Grounds of appeal - Question of fact or question of mixed law and fact - [See Criminal Law - Topic 2001 ].

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquittal - [See Criminal Law - Topic 2001 ].

Droit criminel - Cote 2001

Opérations frauduleuses - Fraude - En quoi consiste la fraude - [Voir Criminal Law - Topic 2001 ].

Droit criminel - Cote 4859

Appels - Actes criminels - Moyens d'appel - Question de fait ou erreur de droit et de fait - [Voir Criminal Law - Topic 4859 ].

Droit criminel - Cote 4975

Appels - Actes criminels - Pouvoirs de la Cour d'appel - Appel d'un acquittement - [Voir Criminal Law - Topic 4975 ].

Cases Noticed:

R. v. Paulin (R.) (2013), 401 N.B.R.(2d) 163; 1041 A.P.R. 163; 2013 NBCA 15, refd to. [para. 2].

R. v. Hunter (B.E.) (2013), 404 N.B.R.(2d) 397; 1048 A.P.R. 397; 2013 NBCA 36, refd to. [para. 2].

R. v. Robichaud (N.) (2012), 395 N.B.R.(2d) 337; 1023 A.P.R. 337; 2012 NBCA 87, refd to. [para. 2].

R. v. Steeves (K.W.) (2011), 379 N.B.R.(2d) 222; 978 A.P.R. 222; 2011 NBCA 88, refd to. [para. 2].

R. v. Picot (C.J.) (2011), 395 N.B.R.(2d) 29; 1023 A.P.R. 29; 2011 NBCA 70, revd. [2012] 3 S.C.R. 74; 436 N.R. 191; 2012 SCC 54, refd to. [para. 7].

Counsel:

Avocats:

Jeffrey L. Mockler, Q.C., for the appellant;

Everett Kenneth Lord, appeared in person, for the respondent.

This appeal was heard was heard on May 21, 2013, by Deschênes, Richard and Quigg, JJ.A., of the New Brunswick Court of Appeal. Quigg, J.A., delivered the following decision for the court on September 5, 2013.