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Frequently Asked Questions

With the increased easy at which we can communicate via the internet, the ease at which individuals have been able to commit fraud has also increased. Fraud offences have become more and more common, with online and phone phishing schemes popping up across the country. Law enforcement agencies have been forced to change the way they police fraud online to keep up with new schemes.

What are the Common Types of Disclosure in Fraud Cases?

Disclosure is the process by which the Crown shares all the information that may be used to secure a conviction for an offence with the accused. Pieces of information that are common to all types of offences include: the accused’s criminal background check, the statement of the main victim or person that brought the issue to the attention of the police, any statements made by the victims of the offence, and, if any, statements of other witnesses to the offence.

Elements of disclosure that are specific to fraud depend on the facts of the case and the type of fraud committed. In certain cases, relevant bank records can be part of disclosure as can business-related documents. If the accused conducted a mortgage or wire fraud, there will be documentary evidence of a fraudulent mortgage or records of fraudulent funds transfers. It might also be possible that security footage may be provided as disclosure if it proves an accused attempted to cash a fraudulent cheque at a bank. If the victim of fraud is a person’s employer, the accused’s employment records may also be relevant disclosure material. This is a non-exhaustive list of examples, and a disclosure package may include only some of this information or more as the case merits.

Over the last decade, Donich Law has represented clients charged with a wide array of fraud offences including fraud over $5,000, fraud under $5,000 and related offences including identity theft, utter forged documents, and possession of property obtained by crime. Often, those caught participating in a fraud scheme will be charged with more than one offence. This makes resolving the matter without a criminal record more difficult.

How Long Does It Take to Receive Disclosure?

Receiving disclosure can take up to several months depending on the complexity of a case. The process of collecting disclosure begins at the police station when the accused is arrested. After the arrest the police begin a case file and bring together all the evidence against a person that concerns the offence they have committed. All the information mentioned above, and more may go into that file. The information may be the result of a police investigation leading to arrest or one conducted after the fact. Completion of a file typically takes around four weeks; at which time it is sent to the office of the Crown.

Once the Crown has the file, they begin a two-step procedure. First, they vet the file. Vetting involves the Crown reviewing all the available evidence and making sure there is no contact, personal, or other sensitive information of victims or third parties that may be given to the accused. After a file has been completely vetted, next the Crown begins a screening process. Screening involves the Crown deciding what their position would be regarding the appropriate sentence for the accused if a guilty plea was entered immediately. Once that process is complete, the disclosure package is made available to the accused.

Punishments for Fraud Depend on the Value of the Property

Donich Law - Assault Punishments

Sophisticated fraud schemes are typically viewed as more morally blameworthy than simple theft or fraud. Where the accused commits fraud in the context of an employment relationship, the courts take an even stronger stance on sentencing. Under Canadian law, any time an individual abuses a position of trust or authority to commit a crime, they will be punished more severely. This is because abusing a position of trust to commit fraud or some other offence carries a higher degree of moral blameworthiness. The Firm has experience defending a wide array of offences, from the lowest of moral blameworthiness, to the highest.

How Does Someone Get Their Disclosure?

Receiving a disclosure package is not an automatic process. An accused or their lawyer must acquire it themselves around the time of that person’s first or second court appearance, and there are many ways to do that. First, a person may acquire it in person by visiting the Crown office at a courthouse. The rules for obtaining a disclosure package are specific to each courthouse, so the process will be different in each jurisdiction. Physical copies of disclosure packages are often lengthy documents that are usually between 50-100 pages long.

Electronic copies of disclosure packages can also be obtained. A request for an electronic copy must be made by the accused’s lawyer by sending a message to specific emails run by the Crown. Once the request is received and processed, the accused or their lawyer will get the disclosure package once it has been uploaded to the Ontario Disclosure Hub database.

How to Defend Fraud Under $5000

What if Someone was Tricked into Committing Fraud by Someone Else?

The offence of fraud covered by s. 380(1) of the Criminal Code requires a person to know that the act they are committing is fraudulent in order to be convicted of an offence. This requirement means that a person involved in another person’s fraudulent scheme must know or have the equivalent of knowledge that the scheme takes a valuable good from a victim based on some deceit or falsehood. Knowledge or equivalent of knowledge refers to actually knowing something or the fact that someone should know something.

To establish the equivalent of knowledge, the Crown can either prove that the accused behaved recklessly and failed to take obvious steps to determine if they were involved in a fraud. It might also be that an accused was willfully blind to the situation. Willful blindness can be established where an accused person has some suspicion or real indication that they are involved in criminal behaviour but decide not to take the steps to confirm those suspicions and remain purposefully ignorant. In practice, if a person is employed in what is presented as a legitimate business that is engaged in fraud and is asked to perform tasks that contribute to the fraud, they will not be criminally liable if there is no way they could have known the true nature of the activity they participated in.

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Our Experience

R. v. I.B. [2014]

In the case of R. v. I.B. [2014], the Firm successfully defended a client who was unwittingly participating in a fraud scheme targeting the TTC in Toronto. The accused, a young university student, was caught using a fraudulent TTC pass and arrested. She contacted the Firm looking for guidance and indicated that she had purchased the card from someone she trusted and had no reason to believe it was not a legitimate card. The Firm gathered evidence to show that the accused had been tricked into the scheme herself and had no intent to defraud anyone. The Firm ultimately resolved the matter with the fraud, possession of property obtained by crime, and utter forged documents were withdrawn.

R. v. K.L. [2015]

In the 2015 case of R. v. K.L. [2015], the Firm successfully defended a client accused of organizing and participating in an elaborate fraud scheme targeting retail stores, specifically Staples and Target stores. Police and the prosecutor alleged that the accused and another party had been attending retail stores and stealing items. The parties would then return to the stores later to return the stolen items for a cash refund. Due to the added layer of deceit, the individuals were charged with fraud and not theft. Fraud offences typically carry more severe penalties due to the added element of deceit. The Firm challenged the Crown’s ability to call pertinent witnesses at trial, leading to the Crown withdrawing for lack of reasonable prospect of conviction.

R. v. Z.U. [2018]

In 2018, the Firm represented a client alleged to be participating in a large, sophisticated, international fraud scheme involving 1 million dollars in Gold Bullion in R. v. Z.U. [2018]. The accused was reported to the Canadian authorities by law enforcement officials in the U.S. and charged with fraud over $5,000 and money laundering foreign proceeds of crime. The police and prosecutor alleged that the parties had developed a complex scheme to first defraud unsuspecting elderly individuals out of cash in the U.S. The funds were then used to purchase Gold Bullion which was then diverted over the Canadian border to be sold. Canadian law enforcement attempted unsuccessfully to gain a confession from the accused, wishing for him to give up his counterpart. The Firm launched a section 13 Charter challenge, resulting in nine of the fraud charges being stayed.

R. v. A.L. [2017]

In 2017, the Firm represented an individual who sold fraudulent concert tickets to unsuspecting individuals online in R. v. A.L. [2017]. The client had been going through a hard time financially and made the decision to post a fake ad on Kijiji offering to sell concert tickets he did not possess. Two young individuals responded to his ad and transferred over money. Later discovering the tickets were fake, they contacted police. Police took several years to investigate using forensic accountants to trace the transactions back to the accused’s back account. The accused was surprised by the arrest given the amount of time that had passed since the incident occurred. Because there is a no statute of limitations on the majority of Canadian criminal offences, police we able to lay the charges even years after. The Firm exploited issues with the Crown’s evidence and secure the withdrawal of all charges.

R. v. S.G. [2020]

In 2020, the Firm represented a client alleged to have defrauded his employer out of more than $52,000 in R. v. S.G. [2020]. The client was charged after he confessed to creating shell corporations and fake invoices to divert funds away from his employer and to himself. Being the Director of the company, the accused got away with the scheme for a significant period of time before feeling guilty and turning himself in. Believing he would be forgiven, he provided the employer with evidence which was then turned over to police to be used against him. The Firm engaged in lengthy Crown pre-trial negotiations with the assigned Crown, resolving the matter without a criminal record, despite the accused’s confession.

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Recent Cases

R. v. Tibbo, 2022 NSSC 321

The Supreme Court of Nova Scotia case of R. v. Tibbo dealt with an offender sentenced to six months imprisonment and 12 months of probation on charges of fraud and theft over $5,000. Beyond these penalties, the judge issued a restitution order that the offender must pay back the $98,156.00 taken to the offender, and the offender was ordered to not be employed or volunteer for a position that carries authority over another person’s money or property during her probation. The facts of the case concerned the offender who was hired to do the bookkeeping for the victim’s business. The offender gained the complete trust of the victim, who was illiterate and the sole owner of the business. The offender then wrote cheques to themself from the victim’s account and cleared it out over two years.

In determining the appropriate sentence, the judge noted that in accordance with the principles of sentencing, the punishment should make a strong statement against the type of behaviour at issue. “As Mr. Zinck is a sole proprietor, there were no substantial administrative oversights or controls in place at the business other than Ms. Tibbo herself. Mr. Zinck has operated his business for decades, and the loss of such an amount of money at his stage of life will be very difficult to accumulate again. Zinck’s Auto, and Mr. Zinck himself, was in a vulnerable position, with a high degree of dependence on Ms. Tibbo. The overall circumstances of the crime had a serious impact on the victim, compounded by the significant breach of trust while committing the crime during a lengthy period of time.” [at paras 37-38] On the understanding that particularly vulnerable parties must be protected, an offender that abuses the trust of a vulnerable victim, as in this case, will face stronger sentences for their crimes.

R. v. Jacobs, 2022 BCPC 230

The Provincial Court of British Columbia case of R. v. Jacobs was the result of an aboriginal offender defrauding their nation out of over $885,000 meant for the community’s most vulnerable members while the offender was serving in a position as a leader of the community. In a position with little oversight, they created several hundred fraudulent requests for funding which were approved and then took the money for themselves.

The seriousness of the offence was far greater than the case discussed above. However, that is not the only relevant factor in the sentencing process. A judge must also account for the rights and interests of the offender, paying particular attention to their aboriginal status given the Gladue principles which outline that aboriginal offenders face unique systemic circumstances. In this case, the judge made an important clarification, “I note that in Gladue, the Court observed that “…the more violent and serious the offence, the more likely it is a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same …” [at para 85] In this case, the cultural context did not take away from the seriousness of the crime and the offender was sentenced to four years imprisonment and a restitution order was made to repay the victimized community the lost funds.

R. v. Vanbuskirk, 2022 BCPC 66

In another case from the Provincial Court of British Columbia, an offender was convicted of fraud over $5,000 and sentenced to 36 months imprisonment and a restitution order was issued. The facts of the case concerned the offender who convinced their wife to transfer almost $30,000 to separate accounts to pay for legal services and counselling for drug addiction. The accounts were actually in the offender’s name and the funds were meant to pay costs relating to his drug addiction. The wife made the payments and subsequently went into bankruptcy, losing all her assets in the process.

Important to this case was the fact that the offender had a lengthy criminal record which included a previous fraud charge. This previous conviction impacted the alternative sentencing measures open to them here. “I agree that probation can be very useful for some offenders, but only if the offender engages actively with his probation officer and participates in the various programs which are available through Community Corrections. Mr. Vanbuskirk failed to do that when a term of probation was imposed as part of his sentence for defrauding the Workers’ Compensation Board. His record of breaches of probation and failures to attend court as required leave little basis for optimism that he would participate constructively in any program to which he might now be referred by a probation officer.” [at para 15] This case is a clear example of how every bit of context can impact a sentencing decision and that the flexibility of Canada’s justice system only goes so far.

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.