FRAUD DEFENCE LAWYERS IN TORONTO

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TORONTO FRAUD LAWYER

Fraud is often associated with white collar crime which may include Antitrust Violations, Bribery, Credit Card Fraud, Counterfeiting, Extortion, Forgery, Illegal Insider Trading and Misappropriation of Trust Funds. We handle situations where individuals facing these allegations are law abiding citizens with no criminal history and help them achieve the best results. Many times these individuals weren’t even aware the alleged conduct was fraudulent. The Criminal Law Group has focused on Employer/Employee Fraud. We have successfully defended numerous allegations of fraud by Employees from the Bank of Montreal, Royal Bank of Canada, HomeSense, Investors Group, Target, Aldo, Wine Rack, GNC, TTC and Telus among many others. We have specialized in defending complex internal Fraud rings, such as sophisticated Fraudulent TTC Metropass and Token schemes in its R. v. I.B. [2014] where all charges of Fraud, Uttering Forged Documents and Possession of Property Obtained By Crime were withdrawn. These police stings often involve elaborate searches and seizure of office computers, mobile devices and files. The Firm recently secured a withdrawal of eight (8) charges of Fraud related charges, attempt Fraud and Conspiracy Charges in its R. v. K.L. [2015], where the accused was allegedly involved in a Staples and Target commercial Theft Ring.

In the Firm’s R. v. S.D. [2017], the accused was allegedly offered a full time position with the TTC and fabricated a fake Toronto Police Vulnerable Sector check to pass employment requirements and ultimately conceal his prior record. After extensive litigation, the Firm secured a withdrawal of all charges.

In January, 2017, the Firm resolved four (4) Fraud related allegations without a criminal record against a Canada Post employee charged with defrauding the Bank of Nova Scotia over $50,000.00 in its R. v. S.A. [2017]. The Firm is frequently consulted by the Media with respect to Theft and Fraud allegations in Toronto and often appears on CityNews680News and other Toronto Media organization including Global News.

In March 2016, the Firm resolved a $1,500 Fraud and Theft Under $5,000 allegation from The Bay, without a Criminal Record, where a Bay Street employee was charged with Shoplifting and caught by undercover security in the menswear department in its R. v. C.T. [2016].  The Firm further secured a withdrawal of nine (9) charges of Theft and Fraud from The Bay after a year of litigation in its R. v. G.E. [2016].

We have successfully secured withdrawals for large scale fraud allegations. In our recent R. v. A.N. [2013], we successfully secured a withdrawal on all counts of fraud, possession of property obtained by crime and uttering forged documents for a $56,000.00 RBC banking transaction.

In the Firm’s new R. v. S.C. [2015], further resolved a $60,000.00 HomeSense employee fraud ring without a criminal record. In its R. v. N.B. [2015] and R. v. B.L. [2015] the Criminal Law Group defended a Target Canada Internal Employee Fraud Ring, it successfully resolved all 13 Fraud Charges without a criminal record, nearly all participants were University Students and first offenders. In its R. v. G.G [2015] the Criminal Law Group further secured a full withdrawal of all counts of Fraud and Theft by a BMO Bank Teller  accused of robbing the bank on the job.

Depending on the value of the defrauded property, a charge of fraud will be for either under or over $5,000. When approached by clients charged with an allegation of fraud, we critically analyze the extensive disclosure which frequently accompanies these charges. Depending on the complexity of the allegation, we have worked with forensic accountants in executing our defence.

Frequently Asked Questions

FRAUD LAW IN CANADA
What is Fraud?
Does the Value of the Fraudulent Activity Make a Difference?
Fraud and the Criminal Code
How Does the Crown Prove Fraud?
Aggravating Factors
When are Aggravating Factors Relevant?
Will Evidence of my Aggravating Conduct Become Part of the Court Record?
Mitigating Factors
When are Mitigating Factors Relevant?
What are Some Examples of Mitigating Factors?

FIRST OFFENDERS
What Happens Once you Have Been Arrested and Taken into Custody?
Is there a Difference Between Theft and Fraud?
What are the Consequences of Having a Criminal Record?

KEEPING CHARGES PRIVATE
Can I Keep my Charges Private From my Spouse and/or Children?
Will my Community Learn About my Fraud Charges?
Once my Matter is Concluded, will People Learn About my Charges?

CRIMINAL RECORD CHECKS
What if I do not Want my Employer or Work to Discover my Charge of Fraud?
What Happens if I am Charged with Defrauding my Employer?
Is the Court Process Different When Fraud Occurs in the Employee/Employer Context?
How will Defrauding my Employer Affect Other Areas of my Life?
What are the Possible Resolutions Available for a Fraud Conviction?
How can Traveling Outside of Canada be Affected by Having a Criminal Record?
What is a Waiver of Inadmissibility?
How Does the Process Work?
After the Application is Filed is There a Way to Check the Status?
Are Waivers of Inadmissibility Only for Individuals with Criminal Records?
Can Having a Criminal Record Complicate my Immigration Process to Canada?
What if I do not Want my Immigration Application to be Impacted by a Fraud Charge?
What is your Rate of Success?
Where do you Practice?
What are Some of the Fraud Cases Donich Law Has Handled?
What is the Difference between Fraud Under $5,000 and Fraud Over $5,000?
What is Property Obtained by Crime?
What are some of the Penalties of Property Obtained by Crime?
What is Uttering Forged Documents?
What are some of the Penalties of Uttering Forged Documents?
What is Employer-Employee Fraud?
What are the Sentencing Implications of Fraud from an Employer?
What Does the Crown Have to Prove for a Conviction of Fraud?
What is restitution?
What are Some Defences to an Allegation of Fraud?
What is Identity Fraud?

Fraud Law in Canada

What is Fraud?

The Criminal Code states that an individual commits fraud when he or she, by deceit, falsehood or other fraudulent means defrauds any individual or the public of any money, property, belonging, service and/or security. The accused must have intended to defraud the individual or public. Fraud happens in a wide variety of contexts and situations and our office has experience handling a variety of fraud related charges.

Does the Value of the Fraudulent Activity Make a Difference?

Yes. The Criminal Code provides that fraud is prosecuted differently depending on whether the value of the fraudulent activity is more than $5,000 or less than $5,000. In cases of fraud under $5,000 the accused will be charged with a summary conviction offence. This means that the maximum penalty upon conviction would be either six months in jail, a $5,000 fine or both. In cases of fraud over $5,000 or when the subject matter of the fraud was a testamentary instrument, the Crown will generally proceed with an indictment, in which case the maximum penalty is fourteen years of imprisonment.  The Crown will be required to prove the monetary value of the fraud in question to determine which tier of the offence will be prosecuted.

The Code also lays out a mandatory minimum punishment for cases where the fraud exceeded one million dollars. In those cases, the accused will be required to spend a minimum of two years in prison upon conviction. In all cases both aggravating and mitigating circumstances will be taken into consideration during sentencing (discussed more in detail below).

Fraud and the Criminal Code

Section 380 of the Canadian Criminal Code lays out the offence of fraud; it reads:

 380 (1) Everyone who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

(b) is guilty

(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(ii) of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars.

Minimum punishment

(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.

Affecting public market

(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

In addition to the general fraud provision as stated above in section 380, there are numerous other provisions in the Criminal Code that deal with crimes involving fraud including but not limited to:

  • Fraudulent manipulation of stock exchange transactions (section 382)
  • Prohibited insider trading (s. 382.1(1))
  • Fraudulent registration of title (s. 386)
  • Fraudulent sale of real property (s. 387)
  • Misleading receipt (s. 388)
  • Fraudulent receipts under Bank Act (s. 390)
  • Disposal of property to defraud creditors (s. 392)
  • Fraud in relation to fares, etc. (s. 393)
  • Fraud in relation to valuable minerals (s. 394)
  • Falsification of Books and Documents (s. 397 – 402)
  • Identity theft and identity fraud (s. 402 – 405)
  • Forgery of Trade-Mark and trade descriptions (s. 406 – 114)

How Does the Crown Prove Fraud?

Like any crime, to obtain a conviction, the Crown must prove both that the accused committed an act prohibited by the criminal code and also that the individual intended to do so, or had a “guilty mind”. If you have been charged with fraud, the Crown must present evidence in court that proves that you have committed a prohibited act or falsehood, deceit or other fraudulent acts and that those acts caused deprivation of some kind. This deprivation can be a tangible loss or it can be an economic interest being put at risk. In addition, the Crown must prove that you were aware of the fraudulent acts you were committing. The Crown may also prove that you were aware there was a risk associated with the actions you were undertaking and that despite knowledge of this risk you proceeded with the course of action anyway.

Aggravating Factors

Aggravating (as well as mitigating) factors are taken into consider during an accused’s sentencing to determine the best possible sentence for the crime and the offender. Aggravating factors are taken into consideration by both the Crown and the judge in any case. With respect to the charge of fraud, the Criminal Code has laid out a list of aggravating factors as related to fraud in section 380.1 (1) as outlined below:

380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances:

(a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;

(b) 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;

(c) the offence involved a large number of victims;

(c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;

(d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community;

(e) the offender did not 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

(f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

Aggravating Circumstance — Value of the Fraud

(1.1) Without limiting the generality of section 718.2, when a court imposes a sentence for an offence referred to in section 382, 382.1 or 400, it shall also consider as an aggravating circumstance the fact that the value of the fraud committed exceeded one million dollars.

Non-Mitigating Factors

(2) When a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence.

In addition to section 380.1(1) the Criminal Code also outlines a number of additional aggravating factors that a judge is required to consider when determining a just and fit sentence. Additional aggravating factors for all criminal charges are listed in section 718.2. A few examples of aggravating factors include:

  • Evidence 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;
  • Evidence the offender abused a person under the age of 18;
  • Evidence the offender abused a position of trust or authority;
  • Evidence the offence had a significant impact on the victim;
  • Evidence the offence was committed for the benefit or in association with a criminal organization;
  • Evidence the offence was terrorism related

In addition to the aggravating factors in section 718.2 of the Criminal Code there are also many factors at common law which have been recognized over the years. Examples of aggravating factors at common law include:

  • Prior criminal record;
  • Violence or use of a weapon;
  • Cruelty or brutality;
  • Significant injuries to the victim;
  • Offence committed while on release from custody;
  • Multiple victims or incidents stemming from the incident;
  • Gang activity;
  • Economic loss of the victim or others;
  • Planning and organization of the crime prior to committing the act;
  • Victim vulnerability (age, disability, minority, etc.);
  • Deliberate risk taking

It is important you discuss and make known to your attorney any aggravating factors that may affect the outcome of your case as soon as possible. Minimizing the aggravating factors or balancing them with mitigating factors will be strategic decisions your attorney can make to obtain the best possible outcome in your case.

When are Aggravating Factors Relevant?

Aggravating factors will be of the utmost importance at several stages of the trial. Initially, the Crown will analyse and balance both aggravating and mitigating factors in the case to determine the most appropriate remedy for the case. These factors may determine if a plea deal is offered to the defendant and what that plea deal will entail. They may also determine whether the Crown will offer alternative forms of justice to better resolve the case (conditional discharge for example). Your attorney and the Crown will likely discuss both aggravating and mitigating factors before a trial begins, so your attorney can advocate for you and ensure the Crown is aware of any mitigating factors that would balance out the aggravating factors the Crown is relying on.

Aside from before and during the trial, aggravating factors will also be relevant during the sentencing portion of the trial. Upon conviction both the Crown and defence will both be asked to give submissions on what they suggest the sentence should be for the offender. Generally, the Crown will submit aggravating factors that they feel warrant a more severe sentence. According to section 718.2(a) of the Criminal Code judges are required to weigh both mitigating and aggravating factors before coming to a decision on a sentence.  The judge will use these submissions (along with mitigation factors submitted by the defence) to determine what a fair and just sentence is for the accused in that particular set of circumstances. Usually, aggravating or mitigating factors are relevant to one of two central themes of sentencing:

  • The gravity of the offence (defined by the offender’s culpability and the harm caused)
  • The ways in which character and conduct of the accused relate to sentencing objectives

Anything that might impact how the court views the gravity of the offence or the character and conduct of the offender may be relevant and these factors should always be discussed with your counsel as soon as possible.

Will Evidence of my Aggravating Conduct Become Part of the Court Record?

As a general rule, anything brought up during trial will become part of the court record as it will be recorded in the transcripts of the trial. In some instances, the aggravating factors may be part of the offense itself. For example, if an individual was found to have defrauded minors, the fact that the victims of the crime were under the age of 18 will be an aggravating factor in the case. In addition to factors present in the actual offence itself, aggravating factors of the accused can also find themselves into the court record before the trial or during the trial in a number of ways.

Before the trial, a vast array of information can become part of the record through the discovery process. This is the process by which each side collects and exchanges evidence pertaining to the case. This evidence is provided to both sides in a document called a disclosure. This disclosure is part of the court record and anything in the disclosure can and will be used against the offender during the trial. In addition to information found in the disclosure, evidence of aggravating factors can also be revealed during the trial through testimony of the victim, witnesses or the accused through questions presented by the Crown.

In any circumstance, if evidence of aggravating factors is used against the accused at trial, those factors must be proven beyond a reasonable doubt in order for them to be used against the accused during sentencing.

Mitigating Factors

Some factors that the courts might find mitigating to a defendant’s case may include:

  • “substantial recovery” of the proceeds of the dishonest conduct
  • voluntary repayment of restitution before sentencing
  • honest motive, including a medical condition, addiction, or other motivating cause other than greed or financial gain
  • major personal impact from offence, such as loss of job
  • strong ties to the community
  • being a first-time offender
  • youthfulness of the offender

In addition to these factors, your defence lawyer will likely also bring up facts about your background and character that may convince the Crown to proceed in a more favorable manor and eventually persuade the judge to impose a more lenient sentence. The events and circumstances leading up to the criminal activities in question along with the general character of the accused will be used to determine the appropriate remedy and sentence in each individual case.

Mitigating factors will suggest that the legal remedy sought by the Crown (jail, a fine, probation, etc.) and the sentence imposed by the judge should be more lenient than if these factors did not exist.

When are Mitigating Factors Relevant?

Mitigating factors can be important throughout your case; before during and after trial. Initially, knowledge of certain circumstances may affect the Crown’s decision on how to proceed with the case, their position on plea deals, sentence upon resolution and whether they will offer alternative sanctions to you. Your attorney will want to be sure to present any mitigating factors that may help your case to the Crown as soon as possible. It may be important for the Crown to know about mitigating circumstances as they could impact how your case is approached from the beginning. As such, it is important to notify your attorney of any mitigating factors as soon as possible.

Additionally, mitigating factors will become relevant upon conviction. Once you have been convicted of an offence a judge will weigh both aggravating and mitigating factors relating to the crime and to the accused to determine a fit and just sentence for the defendant. According to Section 718.2(a) of the Criminal Code judges are required to increase or decrease an offenders sentence by taking into account circumstances that are relevant to the offence and/or the offender. Usually, aggravating or mitigating factors are relevant to one of two central themes of sentencing:

  • The gravity of the offence (defined by the offender’s culpability and the harm caused)
  • The ways in which character and conduct of the accused relate to sentencing objectives

What are Some Examples of Mitigating Factors?

Although the Criminal Code does not explicitly lay out a list of mitigating factors as it does aggravating factors, judge made common law has created such a list that will guide the courts in deciding which factors to weigh in favour of an accused. Several of these factors include:

Acts of Reparation or Compensation – actions taken by the accused prior to the commencement of the proceedings to remedy the situation or provide some sort of reparation or compensation to the victims will receive mitigating credit upon sentencing.

Age – offenders who are minors (youth offenders) or the elderly will generally receive mitigating credit.

Collateral Consequences – physical, emotional, social or financial consequences suffered by the accused as a result of the criminal charge may be mitigating as it shows that the accused has already suffered to some extent for their crimes.

Delay in Prosecution – delay that is serious but not amounting to a Charter breach (s. 11(b)) may be relevant at sentencing because the delay aggravates the ordinary impact of the sentence.

Employment Record – if the accused has a strong record of prior employment this will work in the accused’s favour as it demonstrates pro-social responsibility. However, the extent of its benefit will depend on the nature of the offence. For example, if the offence was defrauding your employer this factor may be less mitigating.

Evidence of Impairment – emotional, physical and psychological factors that impair judgment may act as mitigating factors. It is imperative that the severity of the sentence match the severity of the crime and thus less culpability is placed on those who were impaired at the time of the crime.

First Time Offender – if the accused is a first-time offender the courts will generally view the conviction as punishment enough.

Gap in Criminal Record – if the accused has a past criminal record but with a large gap in time elapsed between the past charge and the current charge, that fact will generally be mitigating to the accused’s case

Guilty Plea and Remorse – courts will view an early plea deal as a mitigating factor in the accused’s case. Courts are more likely to infer remorse from the defendant if the defendant pleads guilty earlier on in the proceedings.

Immaturity – if an offender is particularly immature at the time of the offence this may be seen as lessening the culpability of the offender.

Prior Good Character – achievements and opinions from coworkers, family or friends may help show the offence is out of character. Character references from reputable individuals in the accused’s life will be helpful to prove good character.

Provocation and Duress – although not amounting to a full defence at trial, the presence of some provocation or duress may be relevant at sentencing to reduce the degree of moral blameworthiness.

Rehabilitation Efforts after the Offence – if an accused has been charged with an offence that was related to issues involving drugs, alcohol or anger managements, taking steps to improve these situations may work in the accused’s favour.

Unrelated Acts of Charity of Bravery – Courts may give mitigating credit to individuals who have shown unrelated acts of charity or bravery in their communities.

First Offenders

Being charged with a criminal offence at any point in an individual’s life can be a traumatic and upsetting experience. If you are being charged with a criminal offence for the first time these negative feelings may be compounded by confusion as to how exactly the process will work. It is likely that upon being charged or upon your release if you were detained by police, you will have received some documentation outlining what you have been charged with and when you will be required to appear in court. In some cases, there may be conditions attached to your release. These conditions can include restrictions such as staying away from certain individuals, remaining in your residence at certain times of the day or being prohibited from leaving the province. Failure to abide by these conditions can result in more criminal charges or bail being revoked.

Often court documents can be difficult to understand for those who do not have a legal background. It is important to contact qualified legal counsel to ensure you know all your options and can make an informed decision regarding your case. Our firm can help you understand the charges that have been laid against you, the possible consequences and how to proceed to obtain the best possible outcome.

Regardless of prior criminal history, being charged with a criminal offence is a very serious matter. When a charge is laid against you the following things will happen:

  • The police will record the charge filed against you in their system, often sharing this information with other law enforcement agencies and police organizations.
  • There will be a record of your form of release and any conditions you must follow. This will indicate if you have been released on bail or on a promise to appear.
  • You will be given a court date. You must attend this court date and if you do not a warrant can be issued for your arrest.
  • The Crown Attorney’s office will create a file compiling all your applicable background information as well as any evidence to be used against you in the case. This is called a disclosure and your defence lawyer will be provided with a copy at the appropriate time.
  • Anytime you appear in court it will be a public proceeding and a transcript will be created. This means that anyone is legally permitted to come observe the criminal proceedings against you.
  • In the vast majority of cases you will be required to provide the police with both photographs and finger prints.

Generally, the records complied by the police will remain long after your matter has left the criminal justice system. Even in cases where an accused has received a conditional discharge or withdrawal, the record of the arrest and charge will remain due to backlogs in removing such files from the system. It is possible to hire a lawyer to ensure your record is expunged after a certain amount of time however it is important to remember that in cases where you have received a criminal conviction (and not a conditional discharge or withdrawal) these records will remain associated with your name forever. Based on the severity of what is at stake it is important to consult experienced legal counsel immediately upon being arrested or charged with a criminal offence.

What Happens Once you Have Been Arrested and Taken into Custody?

Typically, when you have been arrested the police will take you to the police station to collect evidence and information about you (finger prints, photographs, past criminal history etc.) and released the same day. Upon your release, you will be given documents with further instructions on your charges, your release and when you must appear in court. In some cases, you may or may not need to post bail and will be released on a Promise to Appear. In some instances, the offender will be able to post bail for themselves however in some circumstances the offender may need a surety to sign their bail and agree to ultimately take custody of the offender.

If however, you have been charged with a more serious crime, or the police have deemed you a flight risk or threat to yourself or the public you may be held in police custody without bail pending further proceedings in the case, or until a judge can be convinced your release would no longer pose a threat. If the police do decide to hold you in custody you will be given the opportunity to go before a judge and have a bail hearing. In most cases and for most charges a bail hearing will not be necessary. This is more common when the charges are very serious or when the accused possess other characteristics such as an extensive criminal history or a history of violence. If bail is denied at the bail hearing the offender could potentially remain in police custody until the case has resolved.

In situations where you are released the same day, you will typically be given documentation by officers stating your charges, any conditions attached to your release (curfew, keeping the peace, no contact with certain individuals, etc.), and when you must appear in court. In these cases, there are two types of documents commonly given to those charged with a criminal offence:

  • Form 9 – Appearance Notice
  • Form 10 – Promise to Appear

Appearance Notice – Form 9

The first document you may be given upon release from police custody is an Appearance Notice. This document states that you have been released from police custody and outlines the charges against you. Generally, these notices must contain the following information: your name and address, what you have been charged with, details about your first court date (where and when), and details about whether you will be required to attend a police station to provide finger prints and/or photographs for the police record.

An Appearance Notice is a legally binding document giving you notice that you must appear in court on a specified date. Should you fail to do so a warrant could be issued for your arrest and you could be taken back into police custody or potentially charged with additional crimes. Additionally, a failure to appear will generally be an aggravating factor in the case against you.

Promise to Appear – Form 10

The second type of document you may receive upon being criminally charged and released from police custody is A Promise to Appear (Form 10). A Promise to Appear document will contain the same information as an Appearance Notice form: your name and home address, a list of your charges, details as to when and where you will need to appear in court and additional details such as possible conditions associated with your release and whether you will be required to report to a police station to provide finger prints and/or photographs for the police record. Before being released you will be required to sign the Promise to Appear document. If you refuse to sign and agree to the terms outlined in the document you will not be released from police custody.

Like an Appearance Notice, a Promise to Appear is a legally binding document and if you fail to appear on the dates listed in the document a warrant will be issued for your arrest and you could face time in police custody and/or additional criminal charges.

Unlike an Appearance Notice, a Promise to Appear generally comes with conditions that you will be required to comply with until the matter has been resolved. These conditions are usually laid out in Form 11.1 Undertaking Given to a Police Officer or Officer in Charge. This form will list the conditions you must comply with while you are outside of police custody. These conditions are similar to those imposed when an individual has been released on bail. You must agree to abide by these conditions before you will be released from custody and must continue to abide by them until your legal matter has concluded or your conditions have been altered or removed by the court. If you fail to comply with the conditions you could be arrested or receive additional conditions or criminal charges. Police have considerable discretion when determining what conditions they will attach to an offender’s release. Potential conditions may include: refraining from consuming alcohol, residing at a court approved address, informing police of any change in address, keeping the peace, informing the police of any changes in employment and/or abiding by a curfew.

Generally, the conditions placed on the accused will depend on what they have been charged with. In cases of fraud, a common condition is being ordered to refrain from entering the premises of the location you defrauded. For example, if you defrauded a department store or your employer you will likely be ordered to stay away from those locations.

REMEMBER: Do not lose the documents you have received from the police. These documents are extremely important and misplacing them could cause you to miss a court date or failure to comply with a condition of your release, which could have serious implications on your case. Bring any documentation given to you to your lawyer at the first meeting to ensure your counsel has all the information necessary to move forward with your case in the most effective and efficient manner.

Is there a Difference Between Theft and Fraud?

Yes. The main factor that distinguishes fraud from theft is an additional element of intent. Both crimes involve the intent to take something that does not belong to the accused. The difference lies in the intent to conceal the unlawful act. An individual who defrauds another individual will use deceit to take the property. A fraud charge is generally regarded as more serious and will generally come with harsher penalties.

What are the Consequences of Having a Criminal Record?

There are several serious implications attached to being convicted of a crime and having a criminal record. These implications can potentially affect all aspects of your life.

(1) Community and/or Personal Life – Having a criminal record can sometimes have repercussions on the offender’s involvement with their community. A criminal conviction can come with a stigmatization that can have a negative impact on the reputation of the offender. It can also affect an offender’s relationship with their friends and family in a variety of ways.

(2) Employment – In today’s job market many employers require regular criminal background checks before they will employ anyone. Other accomplishments such as past job experience or education may be disregarded after an employer discovers the applicant has a criminal record. Many employers are reluctant to hire an individual with a criminal record and so the best approach is to be totally upfront about your criminal record from the outset.

(3) Travel – Having a criminal record can affect an individual’s ability to travel outside Canada. Many foreign jurisdictions are reluctant to admit individuals with past criminal history. Particularly, the United States may refuse entry to those with criminal charges including fraud offences. A U.S. waiver may be required for travel in the U.S. to ensure entry.

(4) Immigration Citizenship and Immigration Canada require thorough background checks on everyone admitted to Canada as an immigrant or permanent resident. Having a criminal record can negatively impact your immigration or permanent residency and it is very likely that having a fraud conviction can exasperate the process and possibly cause the application to be denied.

Keeping Charges Private

Can I Keep my Charges Private From my Spouse and/or Children?

Many individuals will not want to disclose their criminal charges to their friends and family for fear of damaging their reputation. Generally, it is up to the offender to decide whether or not they will share information relating to their charges with their friends and family. Any information discussed between an accused and their lawyer is protected by attorney client confidentiality and cannot be discussed with any third parties. Additionally, you can request your lawyer keep the fact that you are their client confidential. It is important to remember that court proceedings are open to the public and anything discussed during the case on the record is available for any member of the general public to access.

There are many ways our firm can help you keep your charges private. At the initial meeting, it is important to let us know that you would prefer we keep the fact that you are our client private. You can let us know your preferred form of communication to ensure we do not contact you anywhere or at any time that would be less than ideal for you. In addition, we are also able to accept service of documentation relating to your case so as to avoid being served at your home or work address.

Will my Community Learn About my Fraud Charges?

Courts are public forums and so everything stated in court is open and available for the public to view. That being said, our firm is able to help minimize the amount of exposure your criminal charges have to the community. If you would prefer your criminal charge be kept as confidential as possible it is important to communicate this to us as soon as possible.

Once my Matter is Concluded, will People Learn About my Charges?

Generally, the answer to this question is it depends. If the matter is resolved without a conviction and the accused does not obtain a criminal record it will be much easier to keep the charges private. However, in cases where the result is a conviction, keeping the charges private once the matter has concluded will be far more difficult. As discussed in previous sections, having a criminal record will have serious implications relating to one’s ties to the community, to their employment opportunities and to their ability to travel. It is important to discuss the possible ramifications of different outcomes of your case as early as possible so you can make an informed decision on how to proceed.

Criminal Record Checks

It is very common for employers to request criminal background checks before they will employ you. Generally, the local police department in your community will offer such a criminal record check. Should an employer run a background check on your they will have access to your full criminal record including what you have been convicted of and when.

If you have been charged with fraud and are concerned this will negatively impact your ability to obtain employment in the future, contact legal counsel right away to determine what your options are. It is important to note however that no lawyer can guarantee the preferred outcome. Each case is different and each case will be decided based on the individual circumstances surrounding it.

Vulnerable Sector Check

Another type of background check that is common for certain employment positions is a Vulnerable Sector Check. A Venerable Sector Check will be done if you are applying to work or volunteer for any position which places you in a position of authority. For example, the vast majority of positions requiring an individual to interact with youth, the elderly, the disabled or anyone who is otherwise considered a vulnerable person will be required to submit to this type of background check. The check will reveal if you have a criminal record, which in many cases will make you ineligible for the position. In addition, these checks will also reveal any other police records that may be relevant.

What if I do not Want my Employer or Work to Discover my Charge of Fraud?

We routinely defend young professionals, providing expert advice on how to prevent your employer from discovering your fraud charge. Allegations of fraud or a fraud conviction can have a profound impact on current and/or future employment. A conviction associated with fraud can lead to termination of employment and challenges finding new work with rigorous Criminal Record checks.

What Happens if I am Charged with Defrauding my Employer?

If you were caught defrauding your employer it is likely that your employment was immediately terminated. At this point it will be your employer’s decision whether to contact the police and have criminal charges laid. If they do decide to contact the police you may be criminally charged with fraud. Defrauding your employer is not a distinct offence, rather you would be charged with either fraud under $5,000 or fraud over $5,000. However, the fact that you defrauded your employer will be an aggravating factor in your case as you and your employer have a special relationship putting you in a position of trust. A Crown will likely approach this type of case differently than they would approach other types of fraud charges not involving a relationship of trust.

Being convicted of defrauding your employer can have serious future implications. If you have a criminal record future employers will be able to see your charge upon conducting a criminal record check. It is likely that such a charge will seriously impede your ability to obtain employment in several industries and professions.

Is the Court Process Different When Fraud Occurs in the Employee/Employer Context?

The circumstances surrounding your fraud charge will affect how it is dealt with at virtually all stages of the court process. As mentioned above fraud in an employment context will be an aggravating factor in your case. This aggravating factor may impact how the police lay charges, how the Crown proceeds with those charges, and how the case is ultimately resolved and the punishment you will receive.

The Police

The police have a great deal of discretion when laying charges. They determine which charges are laid, how many charges are laid and the seriousness of those charges. They will take into consideration all of the circumstances surrounding the situation before laying charges and aggravating factors may cause them to use their discretion more harshly.

The Crown

Once the police have laid a fraud charge it is up to the Crown to determine how to proceed with the case. The Crown has the power to decide which charges they will proceed with based on the likelihood of obtaining a conviction. If the Crown believes there is enough evidence on the face of the case to reasonably obtain a conviction they will move forward with the prosecution. If they do not feel there is enough evidence to obtain a conviction generally the charges will be withdrawn.

Upon your arrest the police will collect evidence which will be sent to the Crown’s office for their review and a court date will be set. The Crown will typically “screen” the cases before your first appearance in court so that they can provide you with a disclosure which will outline all evidence collected by the police. It also allows the Crown to be prepared to suggest what they believe is a just and fit remedy and sentence for you.

When screening charges, the Crown has a significant amount of discretion with how they will proceed with a case. For example, a substantial number of offences in the Criminal Code are considered hybrid offences. This means they can be prosecuted either as summary conviction offences or as indictable offences. It is up to the Crown to decide which route they will select and the difference can significantly impact the sentence the accused will receive. Charges of fraud involving amounts under $5,000 are considered hybrid offences meaning the Crown has wide discretion to determine how they will proceed. If they choose to proceed with a summary conviction offence the maximum penalty will be 6 months of imprisonment and/or a $5,000 fine. If the Crown chooses to proceed on indictment the maximum penalty will be 14 years of imprisonment. Fraud over $5,000 on the other hand is automatically an indicatable offence with a maximum penalty is 14 years of imprisonment. Finally, if the amount defrauded totals more than one million dollars the Crown will automatically proceed with an indictment and the penalty will be a minimum of two years of imprisonment.

The Crown will consider a wide array of factors surrounding your background, character and the circumstances surrounding the crime you have allegedly committed. If you have defrauded your employer the Crown will likely view this as an aggravating factor. This may mean that in cases where the accused has been charged with fraud under $5,000 the Crown may choose to proceed with an indictment rather than a summary conviction in which case the possible sentences would be far more severe.

The Punishment

It is extremely common for criminal cases to be resolved before they ever reach the trial stage. In the majority of cases the Crown and defence counsel can come to some sort of agreement on how the case should be resolved that does not require a trial be carried out. Often a plea deal will be reached where the accused will agree to plead guilty to the charges in exchange for reduced charges or a reduced sentence. However, the seriousness of the charges against the accused will determine what kind of plea deals are offered to an accused, or if any plea deal is offered at all. In cases where the charges are more serious the Crown is less likely to make a deal with the defense counsel. It is important to be truthful with your legal counsel to ensure they have all of the information needed to obtain the best possible outcome in your case.

When your sentence is being decided, it is likely that the judge or jury will take the following factors into consideration: the amount defrauded, personal characteristics of the accused including their background and personal situation, the context in which the fraud occurred, and any other aggravating or mitigating factors presented by the Crown or defence counsel.

How will Defrauding my Employer Affect Other Areas of my Life?

Having a criminal record regardless of the charge is likely to affect multiple aspects of your life. Having a criminal record relating to defrauding your employer can have more serious implications than other charges. It is likely that before or upon being convicted of defrauding your employer you would have been terminated from your position. In addition, if you are convicted on criminal charges for this fraud you will likely experience the negative implications associated with having a criminal record. Travel to foreign jurisdictions will become more challenging, it will be far more difficult to obtain employment in the future, you may be sentenced to a term of imprisonment which will take you away from your home, friends and family.

What are the Possible Resolutions Available for a Fraud Conviction?

Once you have been convicted of fraud there are a number of different resolutions available depending on how the Crown proceeded with the charges.

Jail

As with any criminal charge, being sentenced to jail is always a possibility. The maximum jail sentence that may be imposed is dependent on whether the Crown has elected to proceed on summary conviction or on indictment. Generally, a jail sentence will only be handed down in more serious fraud charges in cases where the fraud was over $5,000 or where the Crown elected to proceed on indictment.

As mentioned above, charges of fraud involving amounts under $5,000 are considered hybrid offences meaning the Crown has wide discretion to determine how they will proceed. If they choose to proceed with a summary conviction offence the maximum penalty will be 6 months of imprisonment and/or a $5,000 fine. If the Crown chooses to proceed on indictment the maximum penalty will be 14 years of imprisonment. Fraud over $5,000 on the other hand is automatically an indicatable offence with a maximum penalty is 14 years of imprisonment. Finally, if the amount defrauded totals more than one million dollars the Crown will automatically proceed with an indictment and the penalty will be a minimum of two years of imprisonment.

Conditional Sentence

Another type of resolution that may be offered upon being convicted of fraud is a conditional sentence. In cases where the Crown has suggested a term of imprisonment of less than two years the accused may be given the option to serve that sentence in the community rather than in jail. If granted a conditional sentence you will be required to abide by a variety of rules and conditions and failure to do so may result in the conditional sentence being revoked and the remainder of the sentence being served in a custodial institution. These conditions generally differ from case to case depending on what is considered fit and just for the particular set of circumstances.

Before the court can grant a conditional sentence to an offender there several conditions that must be met including: the offence must not have minimum sentence of imprisonment attached to it (convictions of fraud over one million dollars therefore would not be eligible for a conditional sentence), the court must have imposed a jail sentence of less than two years, the conditional sentence must be consistent with the principles of sentencing which govern all sentencing decisions and finally the accused’s release must pose no threat to community safety.

Probation

One of the most common types of sentences handed out, especially to first-time offenders is probation. A probation sentence will require the offender to abide by certain conditions until their probation term is completed. If a condition is breached it will lead to serious consequences such as more criminal charges being filed against the offender. For example, breach of a probation order is a criminal offence. Probation can be imposed on an offender alone or it could be imposed alongside a jail sentence or fine but not both. If it is imposed alongside a jail sentence it will generally occur after the jail sentence has been completed. Probation can only be imposed alongside a jail sentence if the jail sentence is less than two years.

In cases where there is no minimum mandatory sentence for the offence (only fraud charges dealing with less than one million dollars would apply) the judge may impose a suspended sentence and sentence the offender to probation rather than imposing jail time or a fine. Alternatively, probation may be attached to a conditional discharge in which case the offender will be required to remain a law-abiding citizen until the probation period has ended. If they do so their charges will be discharged following completion of the probation term. Finally, probation may be imposed alongside an intermittent sentence. An intermittent sentence means the offender has been sentenced to a term in custody but will be allowed to serve that term intermittently so as have the smallest possible impact on the offender’s life. Generally, intermittent sentences will be served on weekends. This means when the offender is released from custody for weekdays they will be on probation until they return back to custody on the weekend.

Fine

Another common sentence to impose on an offender is a fine. As stated above fines can be imposed alongside either a probation or jail sentence but not both. A fine requires the offender pay a certain amount of money generally within a certain amount of time. It is important to note that when imposing a fine the court will consider the offenders financial situation, meaning the offender must actually be able to pay the fine without seriously damaging their financial stability in order for it to be a just and fit sentence.

Discharge

Courts have considerable discretion on what sentence they will impose in any given case. Section 730(1) of the Criminal Code states that a discharge will be available to a court once a guilty verdict has been delivered in cases where the court feels imposing a criminal sentence on the offender will not serve justice. The court will order a discharge and the offender will walk away without a criminal conviction on their record. Though courts have discretion on when to enter a discharge, certain conditions must be met before the court can do so. In cases where there is no mandatory minimum sentence (fraud under $5,000 and fraud over $5,000 but under $1 million), where the maximum penalty for the crime is 14 years or less, when it is in the best interest of the offender and when it is not contrary to the public interest. The court must balance the best interests of the offender and the public to determine the best possible outcome.

Note: Discharges are not available in cases where the offender is a corporation.

There are two different types of discharge that the court can enter: an absolute discharge or a conditional discharge. When a court discharges an individual’s conviction this essentially means they have found the accused guilty but feel as though placing a criminal conviction on the individual’s record is not necessary and would do more harm than good.

Conditional – A conditional discharge means the offenders criminal conviction will be withdrawn from their record after a period of probation has been completed. The offender will be required to comply with the terms of their probation order and stay out of trouble until the probation period has ended. If the offender commits a further offence while on probation the court may revoke the discharge, placing the conviction on the offender’s record. The court will reserve the right to then impose a sentence on the offender for the original crime.

Absolute – An absolute discharge means the offence is removed from the individual’s criminal record. There will be no probation period imposed and the offence will not return to the offender’s record should they get arrested again in the future. Essentially, the court has found the offender guilty but determined that the punishing the offender will not be in the best interest of justice.

Withdrawal

A withdrawal of criminal charges is another possible outcome for many criminal offences. In cases of less serious fraud charges (generally fraud under $5,000) the court may choose to withdrawal the charges altogether. Section 717 of the Criminal Code states that with the Crown’s approval, successfully completed criminal charges may be withdrawn completely. This means that though the offender was found guilty of the offence, the guilty verdict will not be entered against them and they will not receive any criminal record. Generally, for a withdrawal to occur defence counsel will need to negotiate with the Crown presenting reasons why a withdrawal would be suitable under the circumstances. The circumstances surrounding the offence and the characteristics of the accused will be thoroughly considered and weighed against the interest of the community and public safety.

How can Traveling Outside of Canada be Affected by Having a Criminal Record?

Travelling outside of Canada becomes much more difficult with a criminal record, especially in recent years. Many countries worldwide question individuals trying to enter their borders about past criminal history and have the right to refuse entry to anyone whom they deem unfit for entry. The United States in particular can be difficult to travel to once you have a criminal record as they have strict policies regarding allowing individuals with criminal records on their soil. Though having a criminal record can make travel more difficult it does not necessarily make it impossible.

The United States can refuse entry to any Canadian who is over the age of eighteen and has a criminal record for a crime of moral turpitude. Fraud is considered a crime of moral turpitude and thus border agents will use their discretion on a case by case basis to determine who they will admit. For many offences including some fraud charges, an individual can obtain a waiver of inadmissibility to travel into the United States if they have a criminal record. It is recommended that you apply for the waiver before attempting to travel into the U.S. if you have a criminal record.

What is a Waiver of Inadmissibility?

A waiver of inadmissibility is an application you make to the United States requesting that they grant you entry to their country despite your inadmissibility. As mentioned above you may be found inadmissible if you have been convicted of a crime of moral turpitude. It is important to apply for the waiver of inadmissibility as soon as you decide on your travel plans as the process is lengthy and can sometimes take up to a year and there is no guarantee the waiver will be granted.

How Does the Process Work?

To apply visit the U.S. Citizenship and Immigration Service website. There are several types of forms depending on the immigration status of the applicant. Once the forms have been filled out in full (the application will not be processed until all required documentation is received) they can be filed at either the Port of Entry at which you wish to enter the U.S. or at a preclearance location in Canada. It is important to note that not all Port of Entry locations accept waiver applications so it is important to do your research to ensure you deliver your application to the correct location. The application fee is $585.00 USD and the fee is non-refundable regardless of the outcome of the application.

There may be different documentation required for different types of applications. The documents required for each application will vary significantly from case to case and it may be helpful to consult a lawyer prior to filling out the application to ensure you have selected the correct application forms. A lawyer can also help you identify any documentation you may require. Examples of commonly required documentation includes: the signed and completed application, personal information form, criminal record check, proof of citizenship, a statement as to your intended activities in the U.S., a copy of the court record for any of your convictions, a copy of your criminal file and a fingerprint chart. A fingerprint chart is a set of your fingerprints taken by a U.S. Customs and Border Protection officer.

If you send in your application by mail your finger print chart will generally be taken once the rest of the application has been processed. You will receive instructions on where and when to have this chart taken. If you submit the application in person you will likely have the fingerprint chart at that time. If your waiver is granted it is important to carry all documentation with you while entering the U.S.

It is recommended that you consult legal counsel prior to filing your application to ensure the application has been filed out completely and correctly.

After the Application is Filed is There a Way to Check the Status?

After you have filed the application it will likely be at least a few months before you receive an update on your application. You may check on the status of your application 130 days after submission by email. The process is generally a lengthy one and often takes up to a year to receive a decision on your application. Requesting status updates on your file can sometimes prolong this process so it is best to only do so sparingly.

Are Waivers of Inadmissibility Only for Individuals with Criminal Records?

No. Though having a criminal record is a common reason individuals apply for waivers of inadmissibility this is not the only reason. There are many reasons the U.S. may deny entry to an individual. Some of these reasons include: having a communicable disease, having overstayed last time you entered the U.S. (for example staying after a work visa had expired), or being involved with terrorist organizations. Generally, waiver applications for communicable disease and having overstayed in the past will be considered in the same manner as those for individuals with criminal records. Individuals making applications because they have been denied entry due to ties to terrorist organizations will not be granted under any circumstances.

Can Having a Criminal Record Complicate my Immigration Process to Canada?

Yes. Citizenship and Immigration Canada conduct thorough background checks of all individuals they admit into Canada as immigrants, refugees or permanent residents. Being convicted of a criminal offence such as fraud can complicate this process as it will generally raise a red flag with immigration officials.

What if I do not Want my Immigration Application to be Impacted by a Fraud Charge?

We regularly defend new immigrants or those seeking residency who have been charged with fraud and who prefer not to disclose those charges to Citizenship and Immigration Canada. Our services include providing legal advice regarding the impacts of fraud allegations in the context of immigration applications and travel to the United States.

A conviction of fraud will almost always adversely affect an Application for Permanent Residency or Canadian Citizenship. Our service includes advice on how to navigate these complications.

What is your Rate of Success?

Approximately 99% of all single count first time offenders handled by our Firm are resolved without a criminal conviction. It is important to remember however, that when hiring a criminal lawyer there are no guarantees and success in past cases may not mean success in similar future cases in all instances. Each case that comes before the court is handled in a unique and thoughtful way depending on the particular set of facts.

Where do you Practice?

Our office is located in downtown Toronto and we primarily service Toronto courts specifically, College Park, Metro North, Metro West, Scarborough Court and Old City Hall. It is important to hire a firm who is familiar with the Courts and Crown prosecutors in the jurisdiction where you have been charged so as to obtain the best possible outcome in your case. Our firm also services courts outside of the GTA upon request.

What are Some of the Fraud Cases Donich Law Has Handled?

Donich law handles a wide variety of criminal cases. We regularly assist clients who have been charged with fraud and/or theft related charges and have an impressive success rate especially with first time offenders.

In 2015, we obtained a favourable outcome without a criminal record for our client in a $60,000.00 fraud ring case involving HomeSense in R v S.C. Two years prior in 2013 we resolved R v A.N. without a criminal record for a client who was accused of defrauding RBC of $56,000.00.

In 2016, we resolved a fraud under $5,000.00 case without a criminal record for a Bay Street employee who was caught stealing from The Bay in R v C.T. Also in 2016 our firm resolved R v J.A., an employee fraud ring case where the accused allegedly stole Blue Jays merchandise from the Rogers Center. This case was resolved without a criminal record for our client.

Most recently, in 2017 we resolved R v S.A. also without a criminal record. The case involved four fraud charges against a Canada Post employee who was accused of defrauding the Bank of Nova Scotia for over $50,000.00.

What is the Difference between Fraud Under $5,000 and Fraud Over $5,000?

Section 380(1) of the Criminal Code sets out fraud charges are classified as Fraud under $5,000 or Fraud over $5,000. The elements of the offence that the Crown must prove are the same for both, except for the monetary value of the fraud. For Fraud under charges, the Crown must prove the fraudulent amount was under $5,000; and for Fraud over charges, the Crown must prove the amount was over $5,000.

The two offences also differ in terms of penalty. Section 380(1)(a) sets out that Fraud over $5,000 is an indictable offence, punishable by up to fourteen years imprisonment. Comparatively, Section 380(1)(b) sets out that Fraud under $5,000 is a hybrid offence and can be prosecuted either summarily or by indictment. If prosecuted by indictment, the accused is liable to a term of imprisonment not exceeding two years.

What is Property Obtained by Crime?

According to Section 354(1) of the Criminal Code, property obtained by crime is any property or thing or any proceeds of any property or thing that was derived directly or indirectly from:

  1. the commission in Canada of an offence punishable by indictment; or
  2. an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

Section 354(1) makes it a criminal offence to possess any property if you have knowledge that all or part of the property was obtained by crime.

Section 355.2 of the Criminal Code makes it a criminal offence to traffic (sell, give, transfer, transport, export from Canada, import into Canada, send, deliver or deal with in any other way, or to offer to do any of those acts) property obtained by crime.

What are some of the Penalties of Property Obtained by Crime?

Penalties for a conviction of possessing or trafficking property obtained by crime will vary depending on the specific circumstances of the offence, the characteristics of the offender and the presence of aggravating or mitigating factors.

Section 355 sets out that possession of property obtained by crime is punishable by up to two years imprisonment if the value of the subject-matter of the offence exceeds five-thousand dollars. If the value of the subject-matter of the offence does not exceed five-thousand dollars, the offence is punishable by summary conviction.

Section 355.5 sets out that trafficking of property obtained by crime is punishable by up to fourteen years imprisonment if the value of the subject-matter of the offence exceeds five-thousand dollars. If the value of the subject-matter of the offence does not exceed five-thousand dollars, the offence is hybrid and the Crown can choose to proceed either summarily or by indictment. If the Crown proceeds by indictment, the offence is punishable by up to five years imprisonment.

What is Uttering Forged Documents?

Section 366 of the Criminal Code makes it a criminal offence to commit forgery. Every one commits forgery who makes a false document, which he or she knows to be false and intends for it to:

  1. Be used in any way or acted on as genuine, to the prejudice of anyone; or
  2. Induce a person, who believes the document is genuine, to do or refrain from doing anything.

The statute specifically states the offence is not limited to what occurs within the borders of Canada. Rather, if a forgery causes prejudice to someone outside of Canada or induces a person outside of Canada to act a certain way, it is still punishable as a criminal offence here in Canada.

What are some of the Penalties of Uttering Forged Documents?

Penalties for a conviction of forgery will vary depending on the specific circumstances of the offence, the characteristics of the offender and the presence of aggravating/mitigating factors.

Section 367 of the Criminal Code sets out that a conviction for forgery can result in up to ten years imprisonment if the Crown proceeds by indictment.

What is Employer-Employee Fraud?

Employer-employee fraud requires the Crown prove the same elements of the offence. The only difference is that the fraud takes place against a specific party – the individual’s employer. Fraud against an employer is a more serious type of fraud than traditional fraud because a breach of trust occurred between the employee and the employer, which becomes an aggravating factor at sentencing.

What are the Sentencing Implications of Fraud from an Employer?

The breach of trust that occurs in the context of employer-employee fraud is an aggravating factor at sentencing. Generally, a conviction for employer-employee fraud will yield a harsher sentence than traditional fraud.

Normally, a suspended sentence is the starting point for sentencing in the context of employer-employee fraud

What Does the Crown Have to Prove for a Conviction of Fraud?

For a conviction of fraud the Crown must prove that the accused committed both the guilty act of fraud and that he or she intended to do so. Various fraud offences have different elements that the Crown must prove. For example, Section 403 of the Criminal Code sets out that to prove identity fraud the Crown must prove that the accused intended to personate an actual person, whether living or dead.

To secure a conviction for general fraud under Section 380 of the Criminal Code, the Crown must prove the following elements:

  1. There was a dishonest act, established by deceit, falsehood or other fraudulent means;
  2. That defrauded the public or any person of any property, money or valuable security or any service; and
  3. The accused was aware he or she was engaging in a dishonest act; and
  4. He or she intended to commit that act.

What is Restitution?

Restitution is an order made by the court that the accused must pay a sum of money to compensate a party for a proven loss. For example, an accused person could be ordered to pay $500 restitution to compensate a person for credit card fraud he committed by using his or her credit card.

Restitution orders are meant to rehabilitate offenders by making them immediately responsible for losses sustained by victims. They also give victims a quick way to try and recover their losses.

Restitution orders can be made as part of a term of probation or as stand-alone orders. Sections 738 to 741 deal with ordering restitution payments to victims of crime.

What are Some Defences to an Allegation of Fraud?

The availability of criminal defences will vary depending on the circumstances of the offence and the characteristics of the offender.

One common defence to an allegation of fraud is a lack of intent to defraud. Fraud requires that an individual be aware that they are committing a fraudulent act and intend to do so. It is possible to defend an accused person against an allegation of fraud by claiming he or she did not intend to commit fraud.

However, the circumstances of each case are different and it is important to canvas the relevant facts with a lawyer to determine what defence(s) could be available to you.

What is Identity Fraud?

Identity fraud is a specific branch of fraud, punishable under Section 403 of the Criminal Code, which sets out that everyone commits an offence who fraudulently personates another person, living or dead,

  1. With intent to gain advantages for themselves or another person;
  2. With intent to obtain any property or an interest in any property;
  3. With intent to cause disadvantage to the person being personated or another person; or
  4. With intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.

Basically, identity fraud covers most situations where an individual intentionally pretends to be another person for the purpose of obtaining a benefit or causing a disadvantage to another.

416-DEFENCE | 416-333-3623

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