Tag: Canadian Criminial Code
In the 1944 film-noir classic Double Indemnity, Fred MacMurray plays Walter Neff, a successful salesman at Pacific All Risk Insurance. He has an affair with Phyllis Dietrichson, the wife of a client, played by Barbara Stanwyck, and the two concoct a classic caper: To kill her husband, make it look like an accident, and collect the insurance money.
The title takes its name from a clause in some life insurance policies that would double a benefit in the case of accidental death, like falling off a train, the fate that allegedly befell Mr. Dietrichson and energizes a very suspicious Edward G. Robinson to find out the truth.
While Billy Wilder’s classic film trips up the protagonists’ best-laid plans at several turns, the aim of the insurance company is to uncover a fraud (it would be up to the courts to determine the killer). At law, such a concept is caught by what’s known as the Slayer Rule.
Cleaver et al. v Mutual Reserve Fund Life Association established a general rule of public policy that forbids a criminal from profiting from his or her own wrongdoing. The facts were these: A husband had taken out an insurance policy for the benefit of his wife. The policy was to pay out in the event of his death to the wife, should she be alive, otherwise to his estate. The husband died leaving a Will, the wife was convicted and imprisoned for poisoning him, and Cleaver was appointed administrator of her assets. The insurance benefit was denied to the wife on public policy grounds, and was instead paid out to the estate. In Latin, it’s known as ex turpi causa (“from a dishonourable cause an action does not arise”) and it has been Canadian law since Cleaver was decided in 1892.
One of the most important developments over the last century has been the critical element of moral culpability under section 16 of the Criminal Code of Canada as it relates to the Slayer Rule and insurance entitlements. In the 2012 decision Dhingra v. Dhingra Estate, the Ontario Court of Appeal reversed a lower court’s decision that applied the Rule to a person found not criminally responsible (NCR), holding,
“It seems to me that if a person found not criminally responsible on account of mental disorder is not “morally responsible” for his or her act, there is no rationale for applying the rule of public policy. That rule is founded in the theory that people should not profit from their crimes or, more broadly, by their own wrongs. […] It was an error for the application judge to describe the appellant as having “committed second degree murder.”
So, while an NCR designation may permit the courts to clear a path for the release of the insurance benefit, the following scenarios are still treated as black letter law when a killer strikes, is in their right mind, and:
1) Where insurance proceeds are in question;
2) Where the slayer is a beneficiary under a will;
3) Where the slayer is an heir of his intestate victim;
4) Where the slayer and the deceased were joint tenants.
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Ian Hull and Daniel Enright
MacLeans magazine’s Mark Steyn is providing an acerbic day-by-day report on the trial of newspaper magnate Conrad Black in Chicago. The trial continues a pattern by the US government to lay criminal charges in cases of alleged corporate malfeasance more vigorously following the Enron scandal.
As the historic intergenerational wealth transfer currently underway gathers steam, a well-publicised case could easily drive greater government interest in prosecuting breach of trust accusations just as Enron did in the corporate realm. Virtually all lawyers practising in the area have seen serious misappropriation of property or abuse of the vulnerable by those in a position of trust. Is this criminal? If so, will the police and crown attorneys be willing to treat it as such?
The Canadian Criminal Code certainly indicates so: it includes provisions dealing with Theft by person required to account (section 330); Theft by person holding a power of attorney (section 331); Misappropriation of money held under a direction (section 332); Criminal breach of trust (section 336); Fraud (section 380); and Assaults (sections 264 to 266). These provisions could be invoked given the right circumstances in an Estate, elder abuse or capacity case.
The Police often perceive misappropriation by fiduciaries as a civil matter. On the other hand, they are increasingly aware of elder abuse or abuse of the incapable, and far more willing to intervene.
As high-profile cases involving misappropriation of funds or abuse of incapable persons receive greater media attention, look for the legal consequences to branch out from the civil context to involve criminal charges as well.
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