R. v. Wapoose, 2020 ONSC 6983
The Ontario Superior Court of Justice case of R. v. Wapoose dealt with an aboriginal offender convicted of fraud over $5,000. The offender served on the board of directors of an aboriginal health clinic as a treasurer, which allowed them to defraud the clinic in the approximate amount of $1 million. The scheme involved them receiving consulting fees they were not entitled to and signed fraudulent cheques for other board members engaged in similar fraud. The losses stemming from the fraud and an investigation prompted the clinic to sell off assets and negatively affected the quality of service it could provide.
Due to their status an aboriginal offender, a report was provided that gave light to the offender’s circumstances as it relates to the historical and cultural factors that tie into the offender’s identity and the relationship between the Canadian legal system and aboriginal peoples. Of note here were several factors that adversely impacted the offender’s life, as well as significant health problems that required special treatment. Considering this reality, the judge balanced the circumstances of the offender with the serious nature of the conduct and the need to denounce it. As a result, the offender was given a one year conditional sentence, ordered to attend counselling and a financial literacy course, and was also ordered to pay restitution to the victim in the amount of almost $60,000.
R. v. Suzi, 2018 ABPC 130
The Provincial Court of Alberta case of R. v. Suzi demonstrates the different kinds of dishonest conduct that can result in a conviction for fraud. Specifically, the Code contains the wording, “other fraudulent means” as part of the wording for fraud. Here, the offender victimized a friend who had lived with them. The victim had moved out and left some of their possessions behind, including a blank cheque. The offender forged a cheque, made it out to cash in the amount of $380 and tried to deposit it at the bank. The fraud was ultimately unsuccessful because there were insufficient funds in the offenders account, but an offence had still been committed.
The elements of a fraud offence that must be proven require the offender engaged in a dishonest act and that those actions led to a loss or risk of loss for the victim. To this point, the judge stated, “I am satisfied on the whole of the evidence that the actus reus of fraud has been proven beyond a reasonable doubt. Mr. Suzi engaged in an act of deceit by going through Ms. MacFayden’s personal belongings, taking possession of a cheque that he was not authorized to possess, and then attempting to cash the same without any authority to do so. This was an act of “dishonesty” as defined by the Supreme Court in Olan and Theroux. “Deprivation” has also been established beyond a reasonable doubt given the obvious “risk of prejudice to the economic interests of the victim…” [at paras 25-26]
R. v. Scribnock, 2017 CanLII 13988
The Ontario Superior Court of Justice case of R. v. Scribnock is an example of a case of high value fraud over $1 million that carries a minimum punishment of two years imprisonment as set out in s. 380(1.1) of the Code. In this case the offender was convicted for 19 counts of fraud over $5,000 and sentenced to seven years imprisonment. They were also ordered to pay $2,871,963.30 in restitution as part of a larger forfeiture order and prevented from ever holding authority over someone’s money or property as a volunteer or employee.
The offender was a financial advisor who was highly regarded in their community. The victims were also friends of the offender who placed a great deal of trust in them. These are aggravating factors that accounted for the lengthy sentence issued. The rationale for this decision was summarized by the judge, “This was an egregious fraud where friendships of many years were taken advantage of, where a position of high trust was abused to the financial devastation of several honest hard-working citizens who earned the right to a comfortable decent retirement.” [at para 18]
R. v. Jacobs, 2022 BCPC 230
The Provincial Court of British Columbia case of R. v. Jacobs is another example of fraud sentencing in the context of aboriginal offenders. Here, the offender was a leader of their nation who defrauded it out of over $885,000 meant for the nation’s most vulnerable residents. The offender took advantage of their position and the fact that there was little oversight to commit the fraud. A sentence was issued for four years imprisonment and a restitution order matching the value of the fraud.
As mentioned above, both the seriousness of the offence and the personal and cultural circumstances of the offender must be evaluated in determining sentencing. However, given the severity of the conduct, there is little mitigation to be done in cases such as this. The judge clarified to that effect, “I note that in Gladue, the Court observed that “…the more violent and serious the offence, the more likely it is a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same …” [at para 85]