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Falsely Accused of time theft?

Crime Statistics

Fraud offences can take many forms and have become more common as technology becomes more accessible. They can result in victims and Canadian businesses losing significant amounts of money or property according to a 2021 report from the Canadian Anti-Fraud Centre. Statistics Canada provides annual financial crime data on fraud trends across the country, as a general rule, fraud charges are less common than theft.

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National Fraud Under $5000 Charges in 2022
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Contribution to the Crime Severity Index
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Theft Over $5000 Charges in Canada 2022
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Unfounded Incidents of Fraud Under $5000 in 2022

Frequently Asked Questions

Fraud offences have become more and more common across Ontario due to the increased ease at which many fraud offences can now be committed. Those charged with fraud will face serious penalties including custody in some cases. When determining the appropriate sentence in any case, the Court will consider a number of factors, known as aggravating and mitigating factors. These factors will include, among other things, the criminal background of the accused, nature and circumstances of the alleged fraud, the value of the fraud, and the nature and circumstances of the victim in the case.

What to do if you have been Falsely Accused of Time Theft or Fraud

Being wrongfully accused of a crime, especially by your employer, can be a scary and stressful experience. Typically, when an employer suspects that one of their employees has committed some sort of workplace misconduct, they will launch an investigation into the matter. The nature of the investigation will depend on the specific issue being looked into. Where there are concerns about time fraud or time theft, the employer is likely to look into the hours worked by the employee and how much they were paid for their time.

Time theft or fraud occurs when an employee collects payment for hours or work they did not complete. For example, an employee who clocks into work before actually starting their shift, or who fails to clock out at the end of their shift, has committed time theft. Where there is an added layer of depiction involved, the employee may be accused of time fraud. For example, an employee who steals their managers log in credentials and then logs into the company system and add hours they did not work into the system.

If you have been falsely accused of time theft or time fraud at your job, it is important to contact legal counsel as soon as possible. Legal counsel can help you understand your rights and obligations under the law. Experienced counsel can also help you prepare for any litigation that may arise as a result. It is important to keep any and all evidence that shows that you did in fact work the hours in question. Evidence may be lost or deleted with the more time that passes. Since investigations of this nature can take a while to carry out, it is important to preserve evidence and make notes of everything to ensure any helpful evidence is persevered.

The Firm has over ten years of experience defending individuals charged with a wide array of fraud offences in jurisdictions across Ontario. We utilize risk management techniques as well as litigation to achieve results for our clients. Fraud offences can be both difficult to prosecute and to defend. In many cases, this is due to the complex criminal organizations that perpetrate such offences. The Firm has represented individuals who are first time offenders who simply made a poor decision as well as individuals who have developed sophisticated plans to commit fraud offences.

Can the Police Get Access to a Person’s Bank Records if They are Charged with Fraud?

The police can gain access to a person’s banking records in two ways if they are suspected or accused of committing fraud. In cases where the bank is not the victim of the offence, the police may issue the bank a production order that requires the bank to hand over the records of the accused customer. Where the bank is a victim of the fraud, that process is not necessary. In those instances, a bank may voluntarily provide the police with the records in their role as the complainant to establish evidence that the offence has occurred.

This means that if the impugned employee works at the bank, it may be easier for the bank to access their records. Once the bank has accessed their records, they may pass this information along to law enforcement to prosecute the individual. If the employee works for a company other than a bank, they police may require a production order to get access to the employee’s bank accounts.

Punishments for Fraud Depend on the Value of the Property

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Can a Bank Deny Service to a Person Charged with Fraud?

A bank is a service run by a corporation for the benefit of their customers and those services are not a right enjoyed by those customers. Any financial institution reserves the right to close the account of a customer who is accused of any crime. This outcome is even more likely if the financial institution is the victim of a fraud committed by its customer. The exact scenarios and procedure by which a financial institution will terminate a customer’s account would be contained within the contract for service signed by the two parties.

Where an employee of the bank is accused of stealing from or defrauding the bank, it is within the banks discretion to terminate their business relationship with the accused individual. Typically, the bank will launch an investigation of its own prior to terminating a relationship with a client. Where the individual has been wrongfully accused, they may need to present some evidence showing this to the bank if they wish to have their relationship with the bank restored.

How to Defend Fraud Under $5000

What are the Sentencing Principles That Apply to Cases of Fraud?

Section 718 of the Criminal Code contains the general sentencing principles that are balanced for every different offence under Canadian law. Sentencing acts as a method to protect society with the following purposes: acting as a method to take a stand against and denounce criminal conduct; to deter others from committing offences, to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide a sense of justice to the victims and the community, and to promote a sense of responsibility in offenders. Furthermore, each sentence must be proportional to the harm caused and impose punishment based on the aggravating and mitigating factors specific to each case that suggest stricter or more lenient punishments are necessary respectively.

Specific to the offence of fraud contained within s. 380(1) of the Code, two of the purposes of sentencing are deemed most important. Those are denunciation and deterrence. Various cases have described why this prioritization exists, including the Alberta Court of Queen’s Bench case of R. v. Macleod, 2017 ABQB 722 (CanLII). Fraud is a criminal offence that requires intentional wrongdoing and the victimization of innocent people, which in turn typically warrants stronger punishments. “In cases of fraud, deterrence is particularly important given fraud is typically not a crime of impulse or passing opportunity, rather it is planned and deliberate.” [at para 43]

It is important to note that stealing from or defrauding one’s employer is seen as an aggravating factor by the courts. Sentencing for individuals who have committed theft or fraud against their employer will be more strict than sentencing for other offences not involving one’s employer. This is due to the position of trust and authority companies place their employees in. If you have been wrongfully accused, it is important to collect all relevant evidence to exonerate oneself and avoid sentencing altogether. Experienced legal counsel can assist you in proving that you have been wrongfully accused.

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Our Experience

R. v. S.G. [2020]

In 2020, the Firm represented a client charged with various fraud offences in the case of R. v. S.G. [2020]. The accused was the Director of the company he worked for and used his position of trust and authority in the company to create a shell corporation. He then created fake invoices against the shell corporation and used them to divert funds from his employer to his shell corporation. Over the course of the sophisticated scheme, the client amassed over $52,000 USD in the shell corporation. After a period of time, the client became guilty about what he had done and confessed to his employer. Erroneously believing he could apologise and offer to repay the money, he provided evidence of the fraud to his employer. The employer reported him to law enforcement, and he was charged. The Firm was able to utilize some mental health issues as well as some deficiencies in the Crown’s case to resolve the matter without a criminal record.

R. v. A.L. [2017]

In 2017, the Firm represented an individual charged with fraud under $5,000 in the case of R. v. A.L. [2017]. In that case, the client was charged years after selling fake concert tickets on Kijiji. The matter was reported to police by the individuals who were scammed, and years later the police used forensic accounting to link the fraudulent transaction to the accused through his bank account. The Firm engaged in roughly two years of Crown pre-trial negotiations, challenging various evidence and providing some context to the offence. The client had made significant improvements in his life since the alleged incident which the Firm also leveraged. Ultimately, the Firm resolved the matter with a withdrawal of all charges.

R. v. K.L. [2015]

In 2015, the Firm successfully defended an individual charged with several fraud, conspiracy, and attempt fraud charges in R. v. K.L. [2015]. The client was charged after it was discovered that he was part of a theft and fraud ring targeting Target and Staples stores in Ontario. Police alleged that the parties had been regularly attending retail stores, stealing items, and then returning the items to the store for a cash refund. Due to the organized nature of the offences, the Crown took a strict stance on sentencing. The Firm challenged various aspects of the Crown’s case, exploiting procedural errors. This resulted in the withdrawal of eight of the charges against the accused.

R. v. R.A. [2022]

In 2022, the Firm represented a client charged with identity fraud, possession, sale, etc., of identity documents and fraud over $5,000 in R. v. R.A. [2022]. The client, a second time offender, was arrested after attempting to use a citizenship card with her photo but someone else’s name to cash a fraudulent money order. When the transaction raised concerns, it was reported to police and the client and a co-accused were charged. The Firm engaged in more than two years of pre-trial negotiations with the Crown, whose initial position was custody given the high value of the money order. The Firm and client completed a significant amount of up-front work before resolving the matter with three of the most serious charges being withdrawn, and avoiding a period of custody for the accused.

R. v. I.B. [2014]

In 2014, the Firm represented a client charged with fraud under $5,000, utter forged documents, and possession of property obtained by crime in R. v. I.B. [2014]. In that case, the client was arrested after she was found using a fraudulent TTC card to access the subway system in Toronto. She came to the Firm and explained that she had purchased the card from someone at her school whom she trusted and was completely unaware that the card was not legitimate. The Firm gathered evidence to show that the accused had in fact purchased the card and had no reason to believe it was fraudulent. The Firm also proved that she did not benefit in any way from the fraud, given that she had paid for the card. The charges against the accused were ultimately withdrawn.

R. v. Z.U. [2018]

In 2018, the Firm represented a client accused of money laundering the proceeds of foreign crime and numerous fraud charges in R. v. Z.U. [2018]. The client, a Canadian citizen, was charged after police from the United States uncovered a complex scheme to defraud individuals in the United States, convert the money into gold, and then ship the gold into Canada to be sold. Police estimated the total value of the fraud was close to one million dollars, making the case very high stakes. The Firm was able to challenge significant portions of the evidence collected due to rules of evidence in Canada. In the end, the case resolved with nine of the charges against the accused being withdrawn.

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Recent Cases

R. v. Nowack, 2019 ONSC 5344

The Ontario Superior Court of Justice case of R. v. Nowack is a scenario where the minimum punishment of two years imprisonment imposed by s. 380(1.1) of the Code can be applied to fraud offences valued over $1 million. The offender in this case was convicted of 12 counts of fraud over $5,000. They were sentenced to a prison term of nine years, ordered to never hold an employment or volunteer position of authority over another person’s money or property, and ordered to pay restitution and a larger fine in lieu of forfeiture in the amount of $15,679,087.59.

The circumstances of this offence were that they offender held themself out as an experienced and successful currency trader to the victims. Their trading skill was demonstrated to the victims on practice accounts that carried no risk of actual money being gained or lost. The offender had no such skill and promptly lost the vast majority of the victims’ money or spent it for their own personal benefit, violating the relationship of trust forged with the victims.

The overall scheme was described as follows. “Mr. Nowack perpetrated a scam designed to part people from their money.  It was not a legitimate business where he simply cooked the books or tried to hide losses from investors.  The currency trading was a fig leaf for the real business of fraud.  Mr. Nowack may have hoped to make money from trading currency. Indeed, he likely did hope to make money, but he never intended to distribute any profits to his victims.  His intent was to reap any benefits for himself.  Any money he did distribute came from other investors – and was only distributed in response to threats and pressure.  He never once distributed profits to the investors. [at para 88]

R. v. Deveau, 2020 BCPC 44

The Provincial Court of British Columbia case of R. v. Deveau explores some of the aggravating factors that can result in stronger sentences for fraud offences. Particularly, where a relationship of trust such as employment is abused. The offender was convicted of fraud over $5,000 and sentenced to one year imprisonment as well as probation for 18 months. A restitution order was also issued to pay the victim the value of the fraud, over $200,000. The offender was a bookkeeper for the victim and had access to all the company’s finances. The fraud persisted over several years and even continued after the offender’s employment was terminated.

As part of their reasons for sentencing, the judge outlined the specifics of the scheme, the impact on the victim and how those factors played into the determination of the appropriate punishment. ““It is a lot of coming and going from the workplace, taking that money, knowing that money was not yours, facing those people every single day, and acting as if nothing was wrong and that you were simply doing your job and taking your pay for that job. So the length and degree of the fraudulent activity is an aggravating circumstance in this case. As well, pursuant to s. (c.1) this is an offence that has had, I find, a significant impact on the victims given their personal circumstances including, in the case of Mr. Wade Sr., his age, his health, and the financial situation of the company. This fraud involved a lot of money. Aside from these aggravating circumstances, there is the breach of trust in this case. All of the cases before me indicate this too is an aggravating circumstance on a sentence for this offence.” [at paras 21-22]

R. v. Abdulahi-Sabet, 2019 BCSC 1538

The Supreme Court of British Columbia case of R. v. Abdulahi-Sabet is an example of a case where an offender was convicted of fraud for aiding a friend in a scheme. The two fraudsters acquired several vehicles from multiple dealerships after applying for financing using false information. The court took note that the offender in this case acted at the direction of his accomplice. The proceeds of the scheme were valued at over $700,000, but that value was not completely recoverable as the vehicles had lost some of their value in the meantime.

For this crime, the offender was sentenced to eight months imprisonment and an order was made to repay the victims restitution in the amount of $35,607.09. The rationale behind this punishment accounted for the offender’s guilty plea, their remorse, and the fact that all the vehicles were recovered. The judge described the discrepancy in sentence between the offender here and the mastermind. “While ordinarily a significant period of incarceration may be appropriate, particularly for a fraud in this account, I am mindful of the following.  Mr. Moeinian was the mastermind.  He was given a 24-month sentence for the offences involving Mr. Abduahi-Sabet based on a joint submission.  Mr. Abdulahi-Sabet was acting on Mr. Moeinian’s directions.  Mr. Abdulahi-Sabet has no prior criminal involvement.  He has fully accepted responsibility for the offence and is remorseful.  He is the main daytime caregiver for his sons, who mean the world to him.  Any sentence of incarceration will thus be a severe punishment.” [at para 20]

R. v. Tran, 2021 ONSC 1888

The Ontario Superior Court of Justice case of R. v. Tran resulted in an offender being convicted of possession of proceeds of crime over $5,000 obtained by fraud and an accompanying count of fraud. The facts show that the offender was given money by an acquaintance after that acquaintance entered fraudulent returns into their employer’s return system and credited funds to the offender. Over more than three years, the offender received almost $300,000 from the scheme.

The resulting punishment was a two-year-less-a-day conditional sentence, two years of probation and a restitution order to repay the victim. The sentence balanced the goals of denunciation of the offender’s conduct and deterrence, with the circumstances of the offender. To illustrate this, the judge stated, “Given the nature of the crime, the sentence must be susceptible to satisfying the paramount objectives of deterrence and denunciation.  Conditional sentences have been allowed in the appropriate circumstances in cases with larger and more complex frauds. While Mr. Tran did not plead guilty, he took responsibility for the crime in his pre-sentence interview. I find, in all the circumstances, releasing him into the community on restrictive terms is a sentence that will achieve the goals of public denunciation and deterrence and deter the prospect of future criminality by Mr. Tran.” [at paras 52-53]

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.