FIRST OFFENDER? DEFEND FRAUD CHARGES IN BRAMPTON.  416-DEFENCE.

Fraud related charges are common offences before the Court in Peel Region. Being charged with a criminal offence can be a scary and unsettling experience. Being charged with a fraud offence can lead to fines and even jail. Additionally, having a fraud charge on one’s criminal record can result in other consequences such as difficulty traveling or attaining employment. Hiring experienced counsel is essential to avoid these consequences. Our Firm can provide you with the best strategy for your case to ensure the best possible outcome.

As outlined in the Criminal Code, an individual is guilty of fraud when he or she, by deceit, falsehood or other fraudulent means defrauds any individual or the public of money, property, belongings services and/or security. The individual accused must have intended to defraud the individual or the public to be guilty of this offence.

In 2022, Donich Law defended an individual charged with utter forged documents, identity fraud, fraud over $5,000 and possession, sale, etc., of identity documents in R. v. R.A. [2022] and secured the withdrawal of three of four charges. The client was charged after attempting to cash a fraudulent $40,000 money order using a fake ID. When police were called to the scene, the accused identified herself as the individual named in the ID and initially refused to provide her real name. Due to the serious nature of the offence, the high value of the money order and the fact that the accused had a prior history of committing a similar offence, the Crown’s position on sentence involved a period of incarceration. Donich Law was ultimately able to avoid custody upon sentencing.

To gain a conviction in a fraud charge, the Crown must prove not only that the accused committed the fraudulent act, but also that they intended to commit the act. To prove this intent, the Crown must prove a number of things to the Court. The Crown must prove that the accused deliberately made a false statement and that the false statement had a significant bearing in the situation. The Crown must prove that the accused had knowledge that their statements were false at the time they were made, and that they made the false statements with the intent to deceive and defraud another party. Finally, the Crown must prove that the alleged victim relied on the false statement and as a result of that reliance suffered some loss. The loss could include the loss of money, goods or services. The Crown must show that the accused benefited from the victim’s loss.

In April 2019, the Firm successfully resolved a $170,000 criminal and civil case regarding employer fraud allegations, without a criminal record, in R. v. O.I. [2019]. In that case, an internal employee was alleged to have been surreptitiously converting company assets for his own benefit. In 2018, the Firm secured the withdrawal of a fraud charge in R. v. A.B. [2018], where the accused was allegedly selling counterfeit concert tickets on Kijiji.

The Firm also has experience dealing with complex fraud cases. In 2018, the Firm had nine fraud charges stayed in R. v. Z.U. [2018]. In that case, the accused was arrested during a $1 million gold bullion fraud investigation. The accused was alleged to have stolen money from senior citizens and then converted it into gold bullion, which was then transported over the U.S. Canadian border. The investigation involved both U.S. and Canadian law enforcement.

In January of 2017, the Firm resolved four fraud allegations, without a criminal record, in R. v. S.A. [2017], where a Canada Post employee was accused was attempting to defraud the bank of Nova Scotia out of $50,000. Later in 2017, the Firm secured the withdrawal of a fraud charge in R. v. S.D. [2017], where the accused falsified a Toronto Police Vulnerable Sector Check after being offered a position with the TTC.

In 2015, the Firm secured the withdrawal of eight fraud charges in R. v. K.L. [2015], where the accused was alleged to have been involved in a commercial theft ring targeting Target and Staples. In 2014, the Firm successfully defended an individual alleged to be involved in a sophisticated TTC Metropass and token scheme in R. v. I.B. [2014]. In that case, the accused was charged with fraud, uttering forged documents and possession of property obtained by crime, all of which were withdrawn.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Frequently Asked Questions

What are the Possible Defences to Fraud?
-What is “Lack of Specific Intent”?
-No Risk of Loss?
What are the Possible Penalties to Fraud?
How will the Court Determine my Sentence?
-What are Aggravating Factors?
-What are Mitigating Factors?

Additional Resources

Assault
Assaulting a Peace Officer
Sentencing Factors
Keeping Your Charges Private
Release from Police Custody
Theft From Your Employer
Resolving Shoplifting Charges
U.S. Waivers
Vulnerable Sector Screening
Consequences of a Criminal Record
Immigration Consequences
Elements of a Crime
Your Rights

What are the Possible Defences to Fraud?

The best strategy and defence for any fraud charge will depend largely on the facts of the case and the circumstances in which the alleged fraud occurred. Generally, there are two defences that are commonly used in Brampton in fraud cases. These defences include “lack of specific intent” and “no risk of loss”.

What is “Lack of Specific Intent”?

As outlined above, to prove that the accused committed the offence of fraud, the Crown must prove that the accused intentionally made false statements with the intent to defraud another party. The defence of lack of specific intent argues that the accused did not intentionally make false statements and had no intention of defrauding the victim. The accused must argue that they had no subjective awareness that they were committing fraud. This defence will not be successful however, in situations where the accused is reckless or willfully blind regarding the truth.

No Risk of Loss

This defence argues that there was no risk of loss that resulted from the actions of the accused. As outlined above, to gain a conviction the Crown must prove that the victim suffered a loss, or was at risk of suffering a loss, as a result of the dishonest actions of the accused, and that the accused benefited from that loss. If the accused can prove that the victim did not suffer any loss and was at no risk of suffering a loss, the Court cannot find the accused guilty.

The best defence for any criminal offence will always depend largely on the particular facts of the case. To ensure the best possible outcome it is important to consult qualified legal counsel to assist in formulating the correct strategy. Our Firm has experience in Peel Region with fraud offences of all values and can assist you in attaining a favourable outcome in your case.

What are the Possible Penalties for Fraud?

Depending on the value of the fraud committed, the accused will be charged with either Fraud Under $5,000 or Fraud Over $5,000. The value will largely determine the sentence given to the accused. Where the value of the fraud is less than $5,000, the Crown may elect how to proceed. In less serious cases the Crown will proceed summarily, and the accused will face a maximum of two years’ less a day imprisonment and/or a $5,000 fine. In more serious cases, the Crown will proceed by indictment and the maximum penalty the accused will face is two years’ imprisonment.

Where the value of the fraud is over $5,000 or involved the use of a testamentary instrument, the accused will be charged with an indictable offence. The maximum penalty the accuse will face is fourteen years’ imprisonment. Where the value of the fraud exceeds one million dollars the accused will face a minimum of two years’ imprisonment.

Further, in situations where the individual is alleged to have committed fraud that in some way affected public markets, the Crown will proceed by indictment and the accused will be liable to a maximum of fourteen years’ imprisonment. For the purposes of this section, public markets include the market price of stocks, shares, merchandise or anything that if offered to the public for sale.

Peel Region is often known as “no deal Peel” as Crowns in this jurisdiction are often reluctant to make favourable plea deals with defendants. This can lead to harsher penalties for those charged with fraud in Peel Region. Our Firm has experience defending clients charged with both Fraud Under and Fraud Over $5,000 offences. We have achieved favourable results for our clients in Peel Region, in many cases avoiding a criminal record. We can assist you in navigating the court process and obtaining favourable results in your case.

How will the Court Determine my Sentence?

As outlined above, the possible sentencing range available to the Court will depend on the value of the fraud committed. When determining the appropriate sentence within that range, the Court will weigh all relevant aggravating and mitigating factors presented to them.

What are Aggravating Factors?

The Criminal Code outlines various aggravating factors that must be taken into consideration when determining the correct sentence to impose on an individual convicted of a fraud offence. These factors include;

• The magnitude, complexity, duration or degree of planning of the fraud committed was significant;
• The offence adversely affected, or had the potential to adversely affect the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market;
• The offence involved a large number of victims;
• The offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;
• The offender took advantage of the high regard in which the offender was held in their community when they committed the offence;
• The offender failed to comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject matter of the offence; and
• The offender concealed or destroyed records related to the fraud or disbursement of the proceeds of the fraud.

In addition to these aggravating factors, section 718.2 of the Criminal Code outlines further aggravating factors that must be considered by the court in cases of fraud. A few examples of these aggravating factors are as follows:

• Evidence that the accused abused a person under the age of 18;
• Evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor; or
• Evidence that the offence was committed for the benefit of or in association with a criminal organization.

The presence of these factors will cause the Court to implement a sentence that is closer to the maximum end of the sentencing range.

What are Mitigating Factors?

In addition to the aggravating factors, the Court will also consider any mitigating factors that are present in the case, and weigh these against any aggravating factors to determine the most just sentence for that particular case. Mitigating factors that Courts will consider include;

• The youthfulness of the offender;
• Strong ties to the community;
• “Substantial Recovery” of the funds;
• Voluntary repayment of restitution before sentencing;
• Being a first-time offender;
• Major personal impact from the offence, such as a job loss; or
• Honest motive including a medical condition, addition, or other motivating cause other than greed or financial gain.

In addition to the mitigating factors outlined above, an accused person will also wish to present any other mitigating factors relevant to their particular case, including their personal history or any other factors that may explain the accused’s behaviour. The presence of any of these mitigating factors will be used to justify a more lenient sentence for the accused upon conviction.

Quick Facts

What is the Punishment for Fraud Under $5,000?

Section 380(1)(b) of the Criminal Code lays out the penalties for those who are convicted of fraud under $5,000. Fraud under $5,000 is a hybrid offence, meaning the Crown has considerable discretion regarding the maximum penalty that may be imposed on the accused upon conviction. For more serious fraud under $5,000 cases, the Crown will proceed by indictment and the accused will be liable to a maximum of two years’ imprisonment.

How to Drop Fraud Charges?

The best way to defend a fraud charge will depend largely on the facts of the specific case. In some cases, the defendant may be able to raise doubt over the identity of the fraudster. If there is no doubt regarding the identity of the accused, the defence may be able to argue that the accused’s rights were violated in some way during the investigation or arrest, which can in some cases lead to the charges being withdrawn.

What if an Employee Commits Fraud?

While there is no separate offence in the Criminal Code for defrauding your employer, an individual who has been charged with fraud for defrauding their employer will generally be prosecuted and sentenced more harshly. Since an employee is in a position of trust and has abused that position of trust to commit their fraudulent act, they will receive a harsher sentence. In many cases an employer will confront the employee before going to the police. In these cases, it is common for the employee to make admissions to their employer which can then be turned over to the police and used to prosecute the employee.

What is Fraud?

An individual commits the offence of fraud when they defraud the public, a corporation, or another individual of money, goods, services or property. The accused must have intentionally made false statements to the public or to another person and those false statements must have led to some sort of loss to the victim, or the risk of loss.

What if I got Fooled into Committing Fraud?

It is quite common for fraud to involve multiple parties. In some situations, the accused themselves will have been tricked into committing the fraud by another fraudster. In these situations, it is possible that the accused did not know they were committing fraud.

Can you Destroy Police Records for Fraud?

If you have been charged with fraud but the charges have been withdrawn, you may be able to have your photographs and fingerprints destroyed after a certain period of time. If you were convicted of fraud you will not be able to have your fingerprints or photographs destroyed unless you are granted a record suspension.

Will People Find out I have been Charged with Fraud?

Anytime an individual is charged with a criminal offence it becomes public record. In cases where the public has been defrauded or the monetary value of the fraud is quite high, the police may release information regarding the accused and may even make a press release regarding the arrest, especially if there is concern about there being additional victims.