Fraud Lawyers

What is Fraud?

Fraud is the act of depriving someone of their property, money, or other valuable security or service, through deceit, falsehood or other fraudulent means. Classified according to the value of the subject matter of the offence, fraud under $5,000 is generally distinguished from that over $5,000.

You may be charged with fraud if you intentionally misrepresent or conceal the truth to deprive someone of money or something of value. While similar to theft, fraud involves the additional element of false pretense — by which the loss must take place.

A broad criminal offence, fraud includes altering price tags, forgery, tax evasion, identity theft, pyramid schemes, embezzlement, charity fraud, Internet fraud, insurance fraud, mortgage fraud, bank fraud, and perjury, all of which are felonies under the Criminal Code of Canada.

To yield a conviction of fraud, the Crown Prosecutor must prove beyond a reasonable doubt:

• You deprived the complainant of money or something of value (or there was a risk of such a loss)
• The complainant is the owner of the subject of the offence
• The deprivation was intentional
• The deprivation was caused by false pretense
• You committed the fraudulent act wittingly, or you were willfully blind as to whether the act would cause deprivation
• The value of the subject of the offence (and whether it’s over or under $5,000)

The Crown Prosecutor must also prove:

• Your identity
• The date and time of the offence
• The location of the offence

Fraud Over $5,000

While the elements of fraud under $5,000 and fraud over $5,000 are the same, the consequences for fraud over $5,000 are notably more severe. Generally speaking, the value of the subject of the offence is positively correlated with the severity of the punishment upon conviction.

Fraud vs. Theft

Fraud is similar to theft in that both involve the deprivation of money or property, and both are classified according to the value of the subject of the offence (under or over $5,000). But while property is taken in theft, it’s offered in fraud. That is, victims of fraud willingly forfeit their property to fraudsters under false pretenses.

If you were to hotwire a car, drive it away and strip it for parts, that would be theft. If you instead gained access to this car by posing as a parking valet to whom the owner voluntarily gave their keys, that would be fraud. The deliberate act of deception — absent in theft — is what separates fraud from theft.

Fraud in the Criminal Code of Canada

Section 380 of the Criminal Code states that every one 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,

1. 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
2. is guilty
1. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
2. of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars.

Section 380.1 of the Criminal Code states that it shall consider the following as aggravating circumstances:

1. the magnitude, complexity, duration or degree of planning of the fraud committed was significant;
2. 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;
3. 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;
4. in committing the offence, the offender took advantage of the high regard in which the offender was held in the community;
5. 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 the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

Fraud Charges

Upon an allegation of fraud police may proceed to recommend charges to Crown Counsel. Indeed, it’s Crown Counsel, not police nor complainants, who lay charges in British Columbia. 

When you are charged with fraud, you will either be released by police or held for a bail hearing. Conditions will be imposed on your release regardless of whether you appear before a Justice of the Peace or are released by police.

Fraud Bail Conditions

So long as you lack a history of violence, the court can usually be satisfied that releasing you from custody before trial is safe and appropriate. Your problem then becomes navigating the restrictive bail conditions imposed on your release.

Your bail conditions will likely require you to:

• Avoid all contact with victims, witnesses and co-conspirators 
• Avoid the victim, complainant or co-conspirator’s residence, business, school, place of worship and other frequented establishments
• Avoid the business or establishment where the fraud was allegedly committed
• Abstain from alcohol and non prescription drugs
• Demonstrate law abiding behaviour
• Abide by a curfew
• Provide your current address to the court (and notify the Court of any address changes)
• Remain within a specific geographic area
• Forfeit your passport
• Report to a bail supervisor

Factors that may affect your bail conditions include your:

• Alleged fraudulent behaviour
• Likelihood of attending court
• Criminal history
• History of drug and alcohol use 
• Physical state
• Mental condition
• Employment situation
• Living situation
• Standing in the community

In certain circumstances bail conditions can be varied, but this takes time and negotiations with the Crown. Bail conditions must be complied with unless and until they are varied lest you be charged with breaching bail and jailed.

Fraud Penalties

Penalties for fraud depend on the value of the subject of the offence, the sophistication of the act or scheme, the level of trust breached, the number and nature of the victims, and your offending history. In determining what sentence to seek, the Crown will assess the extent of the fraudulent behaviour and the circumstances from which it arose.

Committing an act of fraud against an employer and other breaches of trust are considered aggravating factors on sentencing and generally result in harsher sentences. Having an existing criminal record with fraud charges will also increase the severity of your sentence. For less severe offences of fraud under $5,000, you may alternately enter an alternative measures program.

Fraud Under $5,000 Penalties

• Up to two years in prison
• Possible referral to an alternative measures program
• Supervised release
• Restitution
• Fines
• Restrictive bail conditions
• Criminal record
• Possible revocation of immigration status
• Travel restrictions to the United States
• Reputational consequences

Fraud Over $5,000 Penalties

• Up to 14 years in prison
• Minimum two years in prison if the value of the subject of the offence exceeds one million dollars
• Possible prohibitions against seeking, obtaining or continuing any employment that involves having authority over the real property, money or valuable security of another person
• Possible prohibitions against volunteering in any capacity that involves having authority over the property, money or valuable security of another person
• Restitution
• Fines
• Restrictive bail conditions
• Criminal record
• Possible revocation of immigration status
• Travel restrictions to the United States
• Reputational consequences

Defending Fraud Charges

Fraud allegations require immediate legal attention. Outcomes in fraud cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled fraud lawyer by your side, but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Diverting your case from the court process via an alternative measures program
• Defending you at trial
• Sentencing

Alternative measures programs

You may be considered for an alternative measures program on your first offence if the charges against you are minor and you admit to and take responsibility for your actions. Overseen by community probation offices, alternative measures programs divert your case from the court process. Alternative measures programs give you the opportunity to make amends through an agreed upon set of steps. If these steps are taken, your charges will be withdrawn and you will not receive a criminal record.

Alternative measures may include:

• Compensation for the loss or damage
• An apology
• Community service work
• Culturally-based practices for Indigenous people

Fraud Trial Defences

Should your case go to trial, defences to fraud charges include (but are not limited to):

• Lack of fraudulent intent: If you were selling items that you sincerely believed to be real but were in fact knockoffs or fakes, you would lack the fraudulent intent required to yield a conviction of fraud. If, however, you failed to verify the items’ authenticity so as to protect your ability to plead ignorance in the event they were discovered as imitations, your reckless or willful blindness would negate this defence. 
• No risk of loss: Since an essential element of fraud is the loss or risk of loss to the complainant, there can be no offence without at least the risk of deprivation. Such a loss only becomes feasible upon a transfer of assets or interests. You may be able to use this defence if you can prove a transfer did not occur. 
• Unlawful search and seizure: Evidence of fraud must be gathered during a legal search. If the search was unlawful, some or all of the evidence gathered against you may be inadmissible in court.
• Violations of the Charter of Rights and Freedoms: Charter applications, motions detailing the ways police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer. When police violate Charter rights during an investigation, the evidence obtained over the course of the investigation may be deemed inadmissible. 

Sentencing

If your case cannot be resolved by way of an alternative measures program, dismissal or acquittal, we can negotiate sentencing options with the Crown, helping you to avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Fraud

• What is Fraud
• Fraud in the Criminal Code of Canada
• Fraud Charges
• Fraud Bail Conditions
• Fraud Penalties
• Defending Fraud Charges