FRAUD & FALSE PRETENCES s. 380 Criminal Code
Fraud offences are divided into 2 categories
(i) Fraud over $5,000.00
(ii) Fraud under $5,000.0
Fraud over $5,000.00:
is an indictable offence with a maximum penalty of 14 years
Fraud under $5,000:
The Crown has a choice as to whether they wish to proceed by indictment or by summary conviction.
By indictment the penalty maximum sentence is 2 years
By summary conviction the maximum sentence is 6 months.
Defending a Fraud Charge:
At Zamani Law, we have had extensive experience over 32 years successfully defending both major and minor scale fraud charges. We take advantage of every loop-hole and weakness in the Crown’s case. We put the Crown to the strict proof of each and every piece of evidence. We will have evidence excluded that is not properly presented to the court. The onus is on the Crown to prove the charge beyond reasonable doubt. We do not have to prove innocence.
Plea bargaining, Reduced charges, Withdrawal of Fraud charges:
Most fraud prosecutions have a complicated paper trail which can make it very difficult for the Crown to prove. In addition, the amount of court time required to prove the case can be lengthy. These factors encourage the Crown prosecutors to pursue possible resolution. If restitution can be made a complete withdrawal of the charge can in some instances be negotiated with the Crown. In cases of minor fraud, we are often successful in negotiating a withdrawal of the charge in exchange for restitution (where appropriate) and some community service or a charitable donation.
To prove a charge of fraud the Crown must establish that the actions of the accused involved deceit, falsehood or other fraudulent means. This means that the accused must have an intent to defraud to attract criminal responsibility.
The victim does not have to actually suffer an economic loss, but there must at the very least be a risk of prejudice to economic interest.
Fraud charges can range from a simple transfer of price-tags to major credit card and mortgage transactions etc involving millions of dollars.
Right to Remain Silent (Police Investigations)
If you are under investigation, speak to a lawyer before speaking to police.
In almost every case it is vital that the accused exercise his right to remain silent. You do not need to assist the police in any way and your own words may ultimately be used against you in court. Do not try to outsmart the police. Remaining silent does not imply guilt. It is your right. Lying to Police is a criminal offence. You do not have to answer any questions. Note: The police are entitled to lie to you in order to induce a statement. If you are being investigated with respect to a fraud allegation, speak to a lawyer prior to any dealings with the police.
Possible Penalties for Fraud:
(b) Conditional sentence (jail term served in the community)
(d) Suspended sentence with probation
(e) Conditional discharge (probation with no conviction)
(f) Absolute discharge
(g) Diversion (community service or charitable donation)
(h) Criminal record
(j) Travel restrictions
(k) Credit rating
(l) Immigration issues
(m) Employment issues
A conviction for Fraud causes serious problems because it is considered a crime of dishonesty.
Factors that impact penalty:
(a) The amount of fraud
(b) The degree of sophistication and planning
(c) Did the fraud involve a breach of trust
(d) The history of the accused (prior record, age, etc)
(e) Reasons for the fraud (eg. gambling addiction)
(f) Has restitution been made or is it possible
(g) The number of victims
(h) Vulnerability of the victims
s. 380.1 Criminal Code of Canada
The Criminal Code has provided a non- exhaustive list of factors which are to be considered by the Courts as aggravating with respect to the issue of sentencing.
S. 380. (1) 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,
o (a) 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
o (b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of the subject-matter of the offence does not exceed five thousand dollars.
(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.
(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Sentencing — aggravating circumstances
380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances:
o (a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;
o (b) 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;
o (c) the offence involved a large number of victims;
o (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;
o (d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community;
o (e) 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
o (f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.
Aggravating circumstance — value of the fraud
(1.1) Without limiting the generality of section 718.2, when a court imposes a sentence for an offence referred to in section 382, 382.1 or 400, it shall also consider as an aggravating circumstance the fact that the value of the fraud committed exceeded one million dollars.
(2) When a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence.