INTRODUCTION AND BRIEF DESCRIPTION
2. In this Act, "trustee" means a person who is declared by any Act to be a trustee or is, by the law of a province, a trustee, and, without restricting the generality of the foregoing, includes a trustee on an express trust created by deed, will or instrument in writing, or by parol;
The Criminal Code contains the offence of criminal breach of trust, as set out at section 336. That section relates specifically to breaches on the part of the trustee of their obligations under the trust, and thus the definition of the term "trustee" for the purposes of section 336, is set out in section 2.
Section 2 of the Criminal Code of Canada is a definition clause that defines the term trustee" in the context of the Act. According to the section, a trustee is any person who is declared by any Act to be a trustee or is, by the law of a province, a trustee. This definition is inclusive and broad enough to cover any trustee under an express trust created by deed, will, instrument in writing, or by parol. Express trusts are those trusts that are created intentionally by a settlor. They are formed when a settlor transfers legal ownership of property or assets to a trustee for the benefit of the beneficiaries. The trustee is then responsible for managing the assets and distributing them in accordance with the terms of the trust. Section 2 of the Criminal Code recognizes the importance of trust law and ensures that trustees are covered under the Act. One of the main purposes of section 2 is to provide clarity and consistency in the definition of trustee". By having a clear definition, it becomes easier to prosecute offenses that may involve a trustee. For instance, if a trustee breaches the terms of the trust by unlawfully misappropriating trust assets or funds, the trustee could be charged under the Criminal Code. Likewise, section 2 would ensure that a trustee who is involved in criminal activities can be held accountable for their actions. It's worth noting that the definition of trustee" under section 2 is not limited to a trustee under a specific type of trust or an express trust that is created in a certain way. Rather, the section encompasses trustees from various sources, including those created under wills and deeds. This means that any trustee who is responsible for managing assets under a legally recognized trust arrangement is covered under the definition. The inclusion of trustees in the Criminal Code is also critical for protecting vulnerable beneficiaries who rely on trust arrangements to manage their assets. For instance, in the case of a trust set up for a minor child, trustees are expected to act in the best interest of the child. However, there are instances where trustees may misuse their position to benefit themselves over the beneficiaries. Section 2 provides a legal framework for prosecuting trustees who breach their trust duties, ultimately protecting beneficiaries from exploitation and abuse. Overall, section 2 of the Criminal Code of Canada serves an essential role in defining the term trustee." It ensures that trustees are covered under the Act and can be held accountable for any criminal activities. This recognition is particularly important for protecting beneficiaries who are often vulnerable and depend on trusts to manage their assets. In essence, section 2 reinforces the importance of trust law and its role in promoting fairness, equity, and accountability in society.
Section 2 of the Criminal Code of Canada defines "trustee" for the purposes of the Act. This definition is crucial when it comes to criminal offences that involve the breach of a trust. In such cases, it is essential to determine whether the accused was a trustee within the meaning of the Act, as this will determine whether the offence has been committed and what penalties may apply. Therefore, there are several strategic considerations when dealing with this section of the Criminal Code. One strategy that could be employed is to carefully review the relevant legislation and case law in order to determine whether the accused meets the definition of a trustee under the Criminal Code. This may require a detailed analysis of the trust instrument or other legal documents governing the relevant relationship, as well as an understanding of the legal principles that apply to trusts. Another strategic consideration is to carefully document the nature of the accused's role and responsibilities in relation to the relevant trust. This may involve gathering evidence such as emails, letters, contracts, and other relevant documents that establish the accused's position as a trustee. Such evidence may be essential in demonstrating that the accused was acting in a fiduciary capacity and owed a duty of loyalty and care to the beneficiaries of the trust. In some cases, it may be possible to argue that the accused did not have the requisite intent to commit a criminal offence. For example, the accused may have believed that their actions were consistent with their obligations as a trustee, or may have been acting in good faith but made a mistake of judgment. In such cases, it may be necessary to carefully review the evidence and circumstances in order to build a strong defence. Ultimately, the strategic considerations when dealing with Section 2 of the Criminal Code will depend on the specifics of each case. However, by carefully analyzing the applicable law and evidence, and building a strong defence, it may be possible to successfully defend against criminal charges related to breach of trust.
QUESTIONS AND ANSWERS
Is a criminal breach of trust the same as a fraud?
No. Fraud is set out in section 380 of the Criminal Code, whereas criminal breach of trust is set out at section 336. While some of the elements of the crimes are similar, the charge of criminal breach of trust requires that the accused be acting in their role as trustee when the fraud or misappropriation transpires. Thus, the two charges will often be prosecuted in conjunction, at which time, upon conviction, the issue of Kienapple (double jeopardy) will need to be considered by the trial judge.