An accusation of fraud is not something to take lightly, as it can lead to imprisonment. If you are accused of fraud, it is essential to seek the services of an experienced lawyer who can understand the specifics of the case to defend you.
The offense of fraud is quite specifically defined in the law and is accompanied by a long and complex judicial process. Here are the different characteristics of fraud as well as the accusation of fraud.
What exactly is fraud?
Fraud is a type of offense that is classified as an economic crime. The general offense of fraud is provided for in section 380(1) of the Criminal Code (C.C.) and constitutes a possible means of prosecution when someone has engaged in deviant behavior in the financial field. Section 380(1) C.C. itself provides that:
| " 380 (1) Whoever, by trickery, lie or other fraudulent means, whether or not it constitutes a false appearance within the meaning of this Act, defrauds the public or any person, whether determined or not, of any property, service, money or value: a) is guilty of an indictable offense and liable to imprisonment for a maximum term of fourteen years if the object of the offense is a testamentary instrument or if the value of the object of the offense exceeds five thousand dollars; b) is guilty of: (i) either an indictable offense and liable to imprisonment for a maximum term of two years, (ii) or an offense punishable on summary conviction if the value of the object of the offense does not exceed five thousand dollars." |
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As you have surely noticed, this provision is written quite broadly, in order to cover a range of situations. Indeed, this article targets both corporate fraud, fraud resulting from bankruptcy, credit card fraud, and tax fraud and evasion.
Case law has also interpreted article 380(1) C.cr. in order to define the constitutive elements of the actus reus (the material element) of the fraud offense as being:
- A prohibited act, which can consist of a real loss or putting the victim's financial interests in danger;
- The deprivation caused by the prohibited act, which can be a real loss or putting the victim's financial interests in peril.
In a criminal fraud case, the prosecution must also demonstrate the mens rea (the guilty intention behind the offense), meaning that:
- The accused had subjective knowledge of the prohibited act; and
- The accused had subjective knowledge that the prohibited act could cause deprivation to others (for example, knowledge that the victim's financial interests are at risk).
What are the penalties associated with fraud?
In order to be classified as fraud, the acts committed by the accused must meet certain criteria. The law categorizes and punishes the offense differently depending on two possibilities: (1) fraud whose value exceeds five thousand dollars and which constitutes a criminal act, or (2) fraud whose object is less than five thousand dollars and which is punishable by summary conviction.
In both cases, the court will take into account the aggravating circumstances, such as whether the public is affected or not, and the extent of the damage.
1) Fraud valued at less than $5000
Fraud of less than five thousand dollars is not treated the same way by the law and the courts. This type of fraud is generally dealt with by summary procedure and, depending on the facts of the case, may or may not lead to a prison sentence.
An individual found guilty of fraud of less than five thousand dollars is still liable to a maximum imprisonment of two years under section 380(1)b) of the Criminal Code.
2) Fraud valued at more than $5000
In cases of fraud exceeding five thousand dollars, the maximum imprisonment sentence can go up to fourteen years under section 380(1)a) of the Criminal Code. Below the fourteen-year threshold, the sentence is often increased according to the value of the fraud.
With this type of fraud, conditional and unconditional discharges and suspended sentences are not available to the accused. Courts tend to punish this crime quite severely, especially when the victims of the crime are more vulnerable.
There are certain aggravating factors that the court must take into account in the determination of the sentence for a fraud crime:
- The scale, complexity, duration, or level of planning of the committed fraud is significant;
- The offense has harmed (or could harm) the Canadian economic stability, the Canadian financial system or the financial markets of Canada, or the confidence of investors in a financial market in Canada;
- The offense has caused damage to a high number of victims;
- The offense has had significant consequences for the victims given their personal situation, such as their age, health status, and financial situation;
- The offender unduly benefited from the reputation of integrity they enjoyed in the community;
- The accused did not meet the requirement of a permit or a license, or a professional conduct standard, which is usually applicable to the activity or conduct that is at the origin of the fraud;
- The accused concealed or destroyed records related to the fraud or the disbursement of the proceeds of the fraud;
- The fact that the committed fraud has a value exceeding one million dollars.
Defend yourself against a fraud accusation with a criminal lawyer partner of JuriGo!
The accusation of fraud can lead to very serious penalties depending on the value of the fraud. What sets fraud apart from other criminal offenses is that there are often many pieces of evidence of the act committed, such as transaction receipts or communications.
Therefore, it is very important to seek the services of a specialized criminal defense lawyer as soon as possible. This could make the difference between a guilty verdict and a not guilty verdict!
JuriGo is here to help you find a criminal and penal law specialist who will defend you in case of fraud. To be put in touch with a lawyer, all you have to do is fill out the form below and we'll take care of the rest.
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