FIRST OFFENDER CHARGED WITH FRAUD? 416-DEFENCE.

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. Many times these individuals weren’t even aware the alleged conduct was fraudulent, including allegations of Employer and Insurance Fraud. We have successfully defended numerous allegations of fraud by employees from the Bank of Montreal, Royal Bank of Canada, HomeSense, Investors Group, TTC, KPMG, University of Toronto and many other white collar professional facing allegations of financial crime.

The Firm has resolved a number of complex fraud allegations. In June 2020, it was able to resolve a $52,423.00 USD sophisticated employee fraud without a criminal record in its R. v. S.G. [2020]. It was alleged a Director of the corporation was secretly diverting corporate money to a false shell company. The investigation was complex and involved several fraud charges, including offences related to uttering forged documents to facilitate the crime. The Director was alleged to have created false invoices for payment to the shell companies in question. The result took nearly 2 years to achieve. The same month in its R. v. M.K. [2020], the Firm also resolved a $5000.00 Home Depot Fraud ring without a criminal record. The accused had 13 fraud related charges and was attending multiple locations allegedly stealing and returning stolen merchandise.

The Firm secured a withdrawal of a $170,000.00 combined civil and criminal internal employer fraud allegation without a criminal record in its R. v. O.I [2019]. Company assets were allegedly being diverted surreptitiously by an internal employee. In June 2018, the Firm secured a withdrawal of Fraud where the offender was accused of selling fake concert tickets on Kijiji, in its R. v. A.B. [2018]. This result was achieved based on how the Firm handled the interrogation with the accused, given law enforcement had obtained production orders to trace the money years later.

We have defended 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v. I.B. [2014] where all charges of Fraud, Uttering Forged Documents and Possession of Property Obtained By Crime were withdrawn.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 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 May 2018, the Firm stayed nine (9) Fraud charges, including money laundering foreign proceeds of crime from the United States in an approximate $1 Million international Gold Bullion investigation, in its R. v. Z.U. [2018]. Money was alleged to have been stolen from U.S. senior citizens and converted to Gold for transport and sale cross-border. The investigation involved both Canadian and U.S. Law Enforcement.

In the Firm’s R. v. S.D. [2017], the accused was offered a full time position with the TTC and allegedly 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 a complex Fraud banking scheme without a criminal record. The accused, a postal worker, was alleged to have defrauded the Bank of Nova Scotia over $50,000.00 in its R. v. S.A. [2017]. The offence allegedly involved stolen social insurance numbers, false identification and bank records. The offender was apprehended fleeing the bank after a bank teller secretly flagged the transaction.

The Firm also secured a withdrawal of a $56,000.00 Royal Bank of Canada fraud in its R. v. A.N. [2013]. The accused from a small town in Ontario was alleged to have deposited a fraudulent bank draft issues by a publicly traded Canadian corporation. The accused’s bank account was frozen by law enforcement and assets seized. The Firm was able to establish that even though the accused temporarily had possession of the money, he was unaware the funds were stolen. All counts of fraud, uttering forged documents and possession of property obtained by crime were withdrawn. The Firm also recovered all frozen financial assets.

The Firm has extensive experience defending internal employee fraud allegations. In its R. v. S.C. [2015], the Firm resolved a $60,000.00 HomeSense fraud ring without a criminal record. The Firm defended two family members who were co-accused in the allegation. They were allegedly attending the cash register where another employee would pretend to scan several thousand dollars of merchandise without collecting payment.

The Firm defended two 19 year old students charged with 10 Fraud Related Offences in its its R. v. N.B. [2015] and R. v. B.L. [2015]. Both students were employed at Target Canada and allegedly altering prices of merchandise for personal profit. In 2015, the Firm defended a Bank of Montreal teller accused of stealing cash on the job in its R. v. G.G. [2015]. The employee’s code was used to make the withdrawal which ultimately justified the charges. With the use of affidavit evidence and video surveillance, the Firm was able to prove the accused was not the person who stole the money and that her code was used by someone else.

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.

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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Legal Information

Frequently Asked Questions

FRAUD LAW IN CANADA
What is Fraud?
Does the Value of the Alleged Fraudlent Activity Matter?
What Does the Crown Need to Secure a Conviction?
Aggravating Factors
At What Point are Aggravating Factors Important?
Are Aggravating Factors Part of the Court Record?
Mitigating Factors
At What Point are Mitigating Factors Important?

FIRST OFFENDERS
What’s a First Offender?
If you Have been Arrested and taken into Custody, What Happens Next?
What is a Form 9 – Appearance Notice?
What is a Form 10 – Promise to Appear?
Are Theft and Fraud the Same?
What are the Consequences of Having a Criminal Record?

KEEPING CHARGES PRIVATE
Am I Required to Disclose Criminal Charges to my Family?
Will my Community Know About my Fraud Charges?

CRIMINAL RECORD CHECKS
Vulnerable Sector Checks
Am I Required to Disclose Criminal Charges to my Employer?
What Happens if I Defraud my Employer?
Is the Court Process the Same for Fraud in the Employee/Employer Context?
What Potential Remedies are Available for a Fraud Conviction?
How can International Travel be Affected by a Criminal Record?
What is a Waiver of Inadmissibility?
How Does the Process Work for a Waiver of Inadmissibility?
What is the Process for Obtaining a Waiver of Inadmissibility?
Are Waivers of Inadmissibility only Used for Criminal Records?
Does a Criminal Record Make Immigration into Canada Difficult?
Can I Avoid my Fraud Charge Impacting my Immigration Application?

Fraud Law in Canada

What is Fraud?

According to section 380(1) of the Criminal Code, a person commits fraud when they use deceit, falsehood or other fraudulent means to defraud any individual or the public of money, property, belonging, service or security. In order to constitute fraud, the accused must have acted intentionally.  Fraud can occur in numerous contexts and our office has experience handling a variety of fraud related charges.

Does the Monetary Value of the Alleged Fraudulent Activity Matter?

Yes, the value of the fraudulent activity matters. As per the Criminal Code, fraud is prosecuted differently if the value of the fraud is above or below $5,000. The onus is on the Crown to prove the monetary value of the alleged fraud in order to determine the tier of the offence that will be prosecuted.

Where the fraud amounts to less than $5,000, the accused will be charged with a summary conviction offence which carries a maximum penalty of either two years less a day imprisonment, a $5,000 fine or both. In cases of fraud exceeding $5,000, the Crown commonly proceeds with an indictment which carries a maximum penalty of fourteen years of imprisonment. This also applies where the subject matter of the fraud was a testamentary instrument.

The Criminal Code also states that in cases where the fraud exceeds one million dollars, the mandatory minimum punishment is two years in prison upon conviction. Aggravating and mitigating factors will be considered in all cases (discussed in more detail below).

What Does the Crown Need to Secure a Conviction?

To obtain a conviction for any crime, the Crown must prove that the accused both committed a prohibited act in the Criminal Code and that the individual had the necessary “guilty mind”.

For fraud, the Crown is required to prove that a person committed a prohibited act of deceit, falsehood or other fraudulent act that resulted in some kind of deprivation. The deprivation in question can be either a tangible loss or an economic interest being endangered. The Crown must prove that the accused was aware of the fraudulent act that they committed and may also prove that the accused was aware of the risk associated with their actions and proceeded anyways.

What are Aggravating Factors?

Aggravating factors are considered by the Crown and the judge in determining the appropriate punishment for the crime and the offender. Section 380.1(1) of the Criminal Code lists aggravating factors related to the offence of fraud as set out below.

Aggravating Circumstance – Value of the Fraud

(1.1) When a court imposes a sentence for a fraud related offence in section 382, 382.1 or 400, the fact that the value of the fraud exceeds one million dollars is considered an aggravating factor (without limiting the generality of section 718.2).

Non-Mitigating Factors

(2) When a court is imposing a sentence for an offence in section 380, 382, 382.1 or 400, the accused’s employment, employment skills or reputation will not be considered as mitigating factors.

The Criminal Code also sets out a list of additional aggravating factors that must be considered by a judge in determining the appropriate sentence for an offender. These aggravating factors are relevant for all criminal offences and are listed in section 718.2. Some relevant factors include:

  • Evidence that the offence was motivated by bias, prejudice or hate based on race, antional or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor;
  • Evidence that the offender abused a person under the age of 18;
  • Evidence that the offencer abused a position of trust or authority;
  • Evidence that the offence had a significant impact on the victim;
  • Evidence that the offence was committed for the benefit or in association with a criminal organization;
  • Evidence the offence was terrorism related

Additional aggravating factors have been recognized at common law including:

  • 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

If any of these factors apply to you, it is extremely important that you discuss them with your lawyer as they can affect the outcome of your case.

At What Point are Aggravating Factors Important?

Aggravating factors are highly relevant and important at various stages of trial. At the outset, the Crown will assess and balance aggravating factors against mitigating factors in order to determine the appropriate remedy or punishment. Aggravating factors may be used to determine whether or not an accused will be offered a plea deal. Aggravating factors can also be relevant to the Crown’s determination of whether they will offer alternative forms of justice such as a conditional discharge.

Aggravating factors also play an important role in sentencing. Once convicted, both the Crown and your lawyer will have the opportunity to make submissions on what sentence is most appropriate. Importantly, section 718.2(a) of the Criminal Code  states that judges must consider both aggravating and mitigating factors before a decision is made on sentencing. Generally, aggravating and mitigating factors are relevant in two key aspects of sentencing:

  1. The gravity of the offence (on the basis of the offender’s culpability and the harm cause)
  2. The ways in which the character and conduct of the accused relate to sentencing objectives

Any factors or circumstances that might affect how the court views the gravity of the offence or the character and conduct of the offender should be brought to the attention of your counsel as soon as possible.

Are Aggravating Factors Part of the Court Record?

Anything brought up or discussed during trial will become part of the court record because it will have been recorded in the transcripts of the trial. In addition, because aggravating factors are often part of the offence itself, they will end up in the court record.

Aggravating factors can also become part of the court record through the discovery process. The discovery process occurs before trial and entails each side collecting, disclosing and exchanging evidence that is relevant to the case.

It is important to bear in mind that the Crown must prove aggravating factors beyond a reasonable doubt if they are to be used during the sentencing of the accused.

Mitigating Factors

There are certain mitigating factors that the court will take into consideration including:

  • “Substantial recovery” of the proceeds that were obtained through 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 the factors listed above, your lawyer can draw attention to facts about your background and character. This may help in convincing the Crown to pursue a more lenient sentence from the judge. The contextual circumstances before an accused committed criminal acts along with their general character will be considered when determining the most appropriate remedy.

Mitigating factors are used to determine the remedy sought as well as to advocate for a more lenient sentence.

At What Point are Mitigating Factors Important?

Similar to aggravating factors, mitigating factors are relevant before trial commences because they might affect the Crown’s decision on how to proceed with the case. More specifically, mitigating factors are relevant in the Crown’s position on offering plea deals and whether they will consider alternative sanctions or remedies. Your lawyer should be diligent in presenting any mitigating factors to the Crown as soon as possible.

Mitigating factors are also important once an accused has been convicted. Upon conviction, a judge will consider aggravating and mitigating factors pertaining to both the crime and the accused in order to determine an appropriate sentence. Pursuant to section 718.2(a) of the Criminal Code, judges must increase or decrease sentencing accordingly based on the relevant factors raised by your lawyer and the Crown.

First Offenders

What’s a First Offender?

Being charged with a criminal offence can be a shocking and traumatic experience. Upon being charged, an accused will commonly be provided with documentation stating what they have been charged with and when they are required to appear in court. In addition, the documentation may outline conditions associated with ones release. These conditions can, for example, require an individual to remain in their residence during certain hours of the day, avoid seeing certain individuals or refrain from leaving the province. In the event that an accused fails to abide by these conditions, additional charges can be pursued or bail may be revoked.

Court documents can be complex and difficult to understand which is why it is important to seek out qualified legal counsel. Our firm will ensure that you understand the charges against you and their potential consequences so that you can make an informed decision in obtaining the most desirable outcome.

When police lay a charge against an accused, irrespective of whether or not they have a prior criminal record, it is important to know that the following things will occur:

  • The charge being laid against the accused will be recorded in the police database, which is oftentimes shared with other law enforcement agencies.
  • The police will make a record of the accused’s form of release as well as any relevant conditions associated with the release.
  • The accused will be provided with a court date. Failing to appear in court may result in a warrant being issued for their arrest.
  • A file containing any relevant background information in addition to any evidence that will be used against you will be created by the Crown Attorney’s office. This process is referred to as disclosure and your legal counsel will receive a copy.
  • Court proceedings are public and transcripts will be created detailing the matters discussed in court. As a result, when an accused appears in court, the general public can observe the proceedings.
  • In most cases, an accused will be required by law to provide the police with personal photographs and finger prints for law enforcement records.

Once records are created by the police, they often remain in the police databases for a considerable period of time after the criminal matter has been resolved. If an accused has been conditionally discharged or charges have been withdrawn, record of the arrest and the charges laid may remain on file due to backlogs in law enforcement systems. Hiring a lawyer may be useful in this case in order to ensure that records are expunged. However, if an individual is convicted, the criminal record will remain on file permanently.

If you Have been Arrested and taken into Custody, What Happens Next?

When an individual is arrested, they will normally be taken to the police station. At the police station, the police will collect personal information including but not limited to finger prints and photographs. For less serious crimes, the accused is often released the same day as their arrest, subject to a “Promise to Appear” and the requirement to post bail. An offender can sometimes post bail themselves, however, in some cases, the offender will require a surety to sign their bail.

If the crime in question is more serious or if police have deemed the accused to be a flight risk, a threat to themselves or the public, the individual may be kept in police custody without bail. If an accused is held in police custody without bail, they are entitled to a bail hearing. If bail is denied at the bail hearing, an accused may be required to remain in police custody for the duration of the case.

More commonly, when an accused is released the same day as their arrest, they will receive one  or both of the following two documents:

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

What is a Form 9 – Appearance Notice?

An Appearance Notice form states that an accused has been released from police custody and lays out the charges against them. Generally speaking, an Appearance Notice must include the following information: the accused’s name, address, what they have been charged with, details regarding their respective court date and details highlighting whether or not they will be required to provide fingerprints/photographs at a police station for records.

It is important to note that an Appearance Notice is a legally binding notice requiring an individual to appear in court on a particular date. Failing to appear in court may result in a warrant being issued for the accused’s arrest which is commonly perceived as an aggravating factor in court.

What is a Form 10 – Promise to Appear?

A Promise to Appear form will contain much of the same information from the above Appearance Notice form but will also include additional details such as any conditions associated with the accused’s release. If an individual refuses to sign the Promise to Appear form, they will not be released from police custody.

Like form 9, the Promise to Appear form is legally binding and failing to comply with its requirements may lead to additional criminal charges. However, unlike an Appearance Notice, a Promise to Appear will likely include conditions set out in Form 11.1 Undertaking Given to a Police Officer or Officer in Charge. The conditions in this form are somewhat similar to bail conditions and are generally applicable until the legal proceedings have been resolved or the conditions are altered/removed. Failing to comply with any such conditions may result in additional criminal charges.

Police are given considerable authority and discretion in deciding what conditions are appropriate with respect to an individuals release. Some conditions that may be applicable include: prohibiting the consumption of alcohol, requiring the accused to reside at a particular address, informing the police in the event of an address change, keeping the peace, informing police in the event of a change in employment and the imposition of a curfew.

The conditions imposed on an accused upon release are generally specific to the criminal charge in question. In the context of fraud, a common condition requires the accused to avoid entering the establishment which they defrauded.

Remember: The documents given to you by police upon release are incredibly important and should not be misplaced. Any documents provided to you by the police should be brought to your lawyer as soon as possible.

Are Theft and Fraud the Same?

No, theft and fraud are not the same. Although both crimes include an intentional act of taking something that does not belong to the accused, fraud involves an additional component. Unlike theft, fraud also involves deceit where the individual is essentially seen as intending to conceal the unlawful act. As a result, fraud charges are often seen as more serious than theft and commonly include harsher penalties.

What are the Consequences of Having a Criminal Record?

(1) Community/Personal Life – The stigma associated with having a criminal record may damage an individuals reputation. It can also quite seriously affect an individuals personal relationships with friends and family.

(2) Employment – It is common for employers to require criminal background checks. Additionally, an individuals job skills and accomplishments may be tarnished or overlooked because of the fact that they have a criminal record. Generally speaking, the best practice is to be honest with potential employers about ones criminal record.

(3) Travel – A criminal record may also limit a persons ability to travel freely outside of Canada. Foreign jurisdictions such as the United States might refuse entry to an individual on the basis of their criminal record.  In the Unites States specifically, a waiver may be required to travel within the country for individuals with a criminal record.

(4) Immigration – Background checks are a standard procedure practiced by Citizenship and Immigration Canada before an individual can be admitted into Canada. As a result, if an individual has a criminal record, it may be substantially more difficult to apply for residency in Canada.

Keeping Charges Private

Am I Required to Disclose Criminal Charges to my Family?

An accused has the right to decide whether they want to inform their family of their criminal charges. Importantly, any information that is discussed with legal counsel is confidential and cannot be shared with any other third party. An individual can also ask their lawyer not to disclose that they are a client to others. However, as mentioned above, court proceedings are available to the public so it is still possible for family members to become aware of potential criminal charges.

There are many ways in which Donich Law can assist in keeping your charges private. In doing so, it is important that you inform your legal counsel that you prefer to keep the fact that you are a client confidential. It may also be helpful to specify a preferred mode of communication so as to protect your personal privacy. Finally, our firm can accept service of documentation pertaining to your case in order to avoid any sensitive documents being sent to your home or work.

Will Members of my Community Know About my Fraud Charges?

As previously stated, court proceedings are available to the public. However, our firm can assist in minimizing the extent that your criminal charges are exposed to your community if you communicate the desire to keep these matters confidential as soon as possible.

It should be noted that the extent to which any criminal charges are exposed to the public will depend on how the matter is resolved. More specifically, if an accused is not convicted and does not receive a criminal record, it is far more simple to keep the matter private. In contrast, if an individual is convicted, it will be much more difficult to keep the criminal record private. The repercussions associated with different outcomes should be discussed with legal counsel as soon as possible so that an informed decision can be made on how best to proceed.

Criminal Record Checks

Vulnerable Sector Check

It is very common for prospective employers to conduct criminal background checks. One particular type of background check that is commonly used is a Vulnerable Sector Check. Vulnerable Sector Checks are relevant when individuals apply to work in positions of authority. More specifically, Vulnerable Sector Checks may be conducted where a job requires a person to interact with members of the youth, the elderly and individuals that are disabled or otherwise considered vulnerable. A Vulnerable Sector Check will uncover any criminal record to employers and will likely make a candidate ineligible for the employment position.

Am I Required to Disclose Criminal Charges to my Employer?

Charges or convictions of fraud can have a significant impact on an individuals ability to find or retain employment. Our firm has extensive experience in navigating these complex matters and can offer expert advice on how to prevent employers from uncovering a fraud charge.

What Happens if I Defraud my Employer?

If an individual has been accused of defrauding their employer, they will most likely have been terminated from their employment. In this situation, the accused’s employer will decide whether or not they intend to contact the police and lay charges.

It is important to note that defrauding your employer is not a district offence. Instead, an accused would be charged with either fraud over $5,000 or fraud under $5,000. With that being said, defrauding your employer is seen as an aggravating factor due to the position of trust an employee has with their employer.

Is the Court Process the Same for Fraud in the Employee/Employer Context?

How a fraud charge is dealt with in court will depend on the facts and surrounding circumstances of the allegation. The manner in which the police lay charges, how the Crown decides to prosecute those charges and how the case is decided will vary based on a case-by-case basis.

The Police

From the outset, the police have the authority to determine the specific charges laid and the seriousness of those charges. In doing so, the police will consider the surrounding circumstances including but not limited to any aggravating factors.

The Crown

Once a fraud charge has been laid by the police, the Crown is given considerable discretion in determining how the case should proceed. The Crown ultimately has the authority to choose which charges will be prosecuted depending on the supporting evidence. In the absence of sufficient evidence, the Crown will generally withdraw the charges.

Once the accused has been arrested, the Crown will collect evidence and set a court date. The accused will generally be provided with a “disclosure” outlining the evidence collected by the police prior to their first appearance in court. This process is also used by the Crown to determine what they believe is an appropriate outcome for the fraud charge.

The Crown can prosecute fraud as either a summary conviction offence or as an indictable offence. Fraud under $5,000 is a hybrid offence which gives the Crown the discretion to decide how they will proceed. Fraud as a summary conviction offence carries with it a maximum penalty of 6 months imprisonment as well as a potential fine of $5,000. If the Crown decides to proceed on the basis of an indictable offence, a conviction can result in a term of imprisonment up to 14 years.

Fraud over $5,000 is automatically treated as an indictable offence with a maximum term of imprisonment of up to 14 years. Additionally, if the value of the fraud amounts to over one million dollars, it will also be automatically treated as an indictable offence, with a mandatory minimum of two years of imprisonment.

The Punishment

In many cases, allegations of fraud can be resolved without having to reach the trial stage. It is likely that the Crown and defence counsel can reach an agreement on how to resolve the matter that does not require a trial. For example, a plea deal may be reached in cases where the accused agrees to plead guilty in exchange for a reduction in the charges or suggested sentence. The seriousness of the charge will determine whether a plea deal is offered and what it entails. It is crucial that you are honest with your legal counsel so thay they have the necessary information to ensure the best possible outcome.

What Potential Remedies are Available for a Fraud Conviction?

If an accused is convicted of fraud, there are several possible resolutions that may be applicable. The applicability of the following outcomes will depend on how the Crown proceeds with the charges.

Jail

Because fraud is a criminal offence, imprisonment is always a possible consequence. As stated above, the minimum and maximum terms of imprisonment will vary based on whether the Crown proceeded with a summary conviction offence or an indictable offence. The value of the fraud will also have an impact on the potential term of imprisonment.

Conditional Sentence

Another possible resolution for a conviction of fraud is a conditional sentence. A conditional sentence may be available where the Crown suggests a term of prison that is less than two years. Conditional sentences may give the convicted person the option to serve their sentence in the community rather than in a custodial institution. Conditional sentences require offenders to comply with various rules and conditions. Failure to abide by the conditions may result in the person having to complete the remainder of their sentence in a custodial institution. The relevant restrictions and conditions will vary on a case-by-case basis.

In order for an offender to be eligible for a conditional sentence, the following conditions must be satisfied:

  • The offence must not have a mandatory minimum sentence, meaning that the individual must not have been convicted of fraud over one million dollars;
  • The term of imprisonment imposed by the court must be less than two years;
  • The conditional sentence must be aligned with the general principles of sentencing; and
  • The individuals release must not pose a threat to the safety of their community.

Probation

Probation is one of the most common types of sentences, specifically in the context of first-time offenders. A probation sentence requires the offender in question to comply with various conditions for the duration of their probation. If a condition is breached prior to the completion of their probation term, additional consequences can be imposed including additional criminal charges. Probation can be used as a resolution in itself or it can be imposed in addition to a jail sentence or fine (but not both). Generally speaking, where probation is imposed along with a term of imprisonment, the probation will come into effect after the jail sentence is completed. Probation can only be imposed along with a term of imprisonment if the imprisonment is less than two years.

Where an offender is convicted of fraud and there is no mandatory minimum sentence, the judge has the discretion to order a suspended sentence and impose probation rather than jail time or a fine. Probation can also potentially be attached to a conditional discharge or an intermittent sentence. An intermittent sentence allows the offender to serve their custodial term intermittently so as to reduce the impact on the offender’s life. In this context, the terms of an offenders probation will apply when they are released from custody.

Fine

Courts may also impose fines on offenders convicted of fraud. The imposition of a fine commonly requires the individual in question to pay a monetary sum within a specified period of time. When a court imposes a fine, it will consider the offenders financial situation so that the individual is able to pay the fine without seriously hindering their financial stability.

Discharge

According to Section 730(1) of the Criminal Code, a discharge is available to offenders that have been found guilty if the court determines that a criminal sentence would not serve justice. As a result, when a court orders a discharge, an offender that has been found guilty will avoid a criminal conviction.

In order for the court to order a discharge, specific conditions must be satisfied. A discharge is only applicable where there is no mandatory minimum sentence, where the maximum penalty is 14 years or less, when it is deemed to be in the interest of the offender and when it does not go against public interest to do so. The courts ability to order a discharge will additionally require the best interest of the offender to be weighed against that of the public.

Note: Courts cannot order a discharge where the offender in question is a corporation.

Discharges are either absolute or conditional. In the context of an absolute discharge, the offence that the accused has plead guilty to is removed from their criminal record. Additionally, absolute discharges carry no probation period and the offence will not become part of the individuals criminal record if they are arrested in the future.

A conditional discharge requires the offender to comply with the terms of their probation order before the offence is removed from that persons criminal record. If an individual fails to comply with their probation terms, the court has the ability to revoke the discharge, place the conviction on their criminal record and impose a sentence.

Withdrawal

Withdrawing criminal charges is yet another possible resolution to a fraud charge. In Section 717 of the Criminal Code, it is expressly stated that criminal charges can be withdrawn subject to the Crown’s approval. In essence, despite a guilty verdict, the offender will not receive a criminal record for the offence in question.

Withdrawal will generally only occur where the defence counsel is able to demonstrate to the Crown that withdrawing criminal charges would be appropriate and desirable. In doing so, the Crown will often weigh the surrounding circumstances and the character of the accused against the interests of the community.

How Can International Travel be Affected by a Criminal Record?

As previously stated, individuals with criminal records may face difficulty in trying to travel outside of Canada. It is common for foreign countries to question individuals with criminal records prior to allowing entry. For example, the United States has the ability to refuse entry to Canadians over the age of eighteen with criminal records of moral turpitude. Importantly, fraud is deemed to be a crime of moral turpitude, which ultimately gives border agents the discretion to assess whether or not a particular offender should be admitted into the United States. However, offenders may be able to obtain a waiver of inadmissibility in order to enter the United States with a criminal record.

What is a Waiver of Inadmissibility?

A waiver of inadmissibility is an application requesting the right to enter into the United States despite a persons inadmissibility. Individuals seeking to enter the United States who require a waiver of inadmissibility should apply as soon as possible due to the sometimes lengthy process (taking up to a year).

What is the Process for Obtaining a Waiver of Inadmissibility

Note: Individuals looking to apply for a waiver of inadmissibility should visit the United States Citizenship and Immigration Service Website.

There are a number of different forms that may be relevant depending on the immigration status of the individual in question. After selecting the appropriate forms and filling them out entirely, they can be submitted at the Port of Entry at which the person is seeking entry or at an applicable preclearance location within Canada. The application costs $585 USD which is non-refundable regardless of whether or not the waiver of inadmissibility is granted.

Given that the forms of documentation required vary for the different types of applications, it may be useful to speak with a lawyer before submitting an application. With that being said, a useful list of documents that are normally required is as follows:

  • Application form (signed and completed)
  • Personal information form
  • Criminal record check
  • Proof of citizenship
  • Written statement of intended activities in the U.S.
  • Copies of court records for any convictions in question
  • Copies of criminal file and fingerprint chart

Is There a Way to Check the Status of an Application?

Yes, you can check the status of your application 130 days after it has been submitted by email. Generally, the application process takes up to a year and requesting a status update can, in some cases, prolong the process.

Are Waivers of Inadmissibility Only Used for Criminal Records?

No, there are a number of reasons that individuals apply for waivers of inadmissibility. For example, these waivers are applicable for individuals with communicable diseases, people who have overstayed during previous visits to the United States, or for individuals that have been involved with terrorist organizations.

Does a Criminal Record Make Immigration Into Canada Difficult?

Yes, having a criminal record will generally complicate the immigration process into Canada. Citizenship and Immigration Canada commonly perceive the presence of a criminal record to be a red flag.

Can I Avoid my Fraud Charge Impacting my Immigration Application?

Our firm regularly defends new immigrants and individuals seeking residency in Canada who have been charged with fraud and prefer not to disclose that fact to Citizenship and Immigration Canada. Our firm provides legal advice concerning the impacts of fraud allegations on immigration applications and entry into the United States. Our firm can effectively advise you on how to navigate these complications.

Quick Facts

What is the Punishment for Fraud Under $5000?

Depending on the nature of the fraud, the Crown can seek a jail sentence. The Crown will consider a number of factors, including the duration of the Fraud, the length of time over which it occurred and whether the accused was an employee. In certain cases where the mitigating factors are strong, the accused can avoid a criminal record.

How to Drop Fraud Charges?

There are a number of ways to defend fraud charges. In many cases the Crown will have video surveillance or a paper trail of the money. Sometimes this evidence is challenged by raising doubt over the identity of the fraudster in the chain of events. In other cases, the characteristics of the offender coupled with a strong defence can result in a withdrawal.

What happens if an Employee commits Fraud?

Employee frauds are prosecuted much more aggressively because there is a breach of trust. As a general rule, the court can impose a jail sentence or criminal record for these offences. In many cases, employees also make a series of admissions at work before they are fired, hoping they won't be charged. This creates a series of problems for their criminal defence, because they have already self-incriminated themselves.

What is Fraud?

A person commits fraud when they defraud an individual or corporation of money, property or services. In order to prove fraud, the Crown must establish the accused intended to commit the act in question. Video surveillance and a paper trial of money through bank records is often used to support a fraud conviction.

What if I got fooled into committing Fraud?

In many cases, frauds are done with multiple people. Sometimes, people will prey on vulnerable or unsophisticated individuals to help them engage in criminal acts. Sometimes the person caught committing the fraud was not the actual mastermind and was unaware of the scheme.

Can you Destroy Police Records for Fraud?

Depending on how your case is handled, you may be able to destroy fingerprints and photographs retained by local police. A person will need to avoid a criminal record first so its important to get legal advice early, as how your case is handled will ultimately dictate whether records can be destroyed.

Will people find out I am Charged with Fraud?

Being charged criminally is on the public record. However, in many cases a person can successfully contain whether their spouse, employer or family discover the allegations. It's important to get proper stewardship early to avoid any unwanted discovery by others and destroy criminal records as soon as possible.

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