The Federal Court of Appeal has allowed the Crown’s appeal in Johnson: see R v Johnson, 2012 FCA 285, rev’g 2011 TCC 540.
The key point for the FCA decision in this case appears to be at ¶38, which reads as follows:
The agreement between Ms. Johnson and Mr. Lech was never reduced to writing and is evidenced only by Ms. Johnson’s testimony about what she was told by Mr. Lech, and her subjective belief that he was telling the truth. In my view, her evidence establishes no more than the existence of an agreement that Mr. Lech would repay Ms. Johnson any money she gave him, with a return, in instalments in the amounts and on the dates indicated by the postdated cheques he gave her in exchange.
The difficulty I have with this characterization of the issue is that it assumes the very question in issue: it assumes that the rogue (Lech) paid a return to Johnson! The point is that Johnson received an amount in excess of her investment that was not a “return” because it was stolen money to which, it appears, Johnson had no legal entitlement (because victims of the fraud could claim over against her for compensation from her gains).
