Toronto Fraud Lawyer
Choosing the right criminal defence lawyer is vitally important when facing a fraud charge. Brian Weingarten is a Toronto criminal lawyer who has experience defending complex immigration, as well as real estate and financial fraud charges. A fraud charge carries a very strong social stigma. If you are found guilty, evidence from the criminal case might also be used to support a civil claim for the recovery of money or property. As a result of recent amendments to the Criminal Code, judges now have the authority to make prohibition orders when sentencing an individual found guilty of fraud. These prohibition orders may affect your ability to find future employment.
What are the Different Types of Fraud?
The general fraud offence is found in section 380 of the Code. This is generally known as “fraud simpliciter.”
Fraud under section 380 of the Code can be broken down into two different categories:
1) Fraud Under $5,000
2) Fraud Over $5,000
The maximum penalty for fraud under $5,000 is two years in prison if prosecuted by way of indictment. The maximum penalty for fraud over $5,000 is 14 years in prison.
Aside from the general offence of fraud, the Criminal Code contains a number of different categories of fraud and “fraud-like” offences. These include:
• Business Fraud: criminal insider trading and tipping, frauds upon public markets, fraudulent conveyances to defraud creditors, falsification of books and documents, circulating or publishing a false prospectus.
• Real Estate Fraud: fraudulent registration of title, fraudulent sale of real property.
• Identity Fraud: identity theft, personation, identity fraud to obtain an advantage.
• Intellectual Property Fraud: forgery of trademarks, passing-off.
• Immigration Fraud, and Frauds Upon the Public.
• Welfare Fraud.
What Does the Crown Have to Prove to Secure a Conviction for Fraud?
Various fraud offences have different elements that the Crown must prove in order to secure a conviction. For example, in a case of Identity Fraud under section 403 of the Criminal Code, the Crown must prove that the accused intended to personate an actual person, whether living or dead. Merely using a pseudonym without knowledge that the identity belongs to an actual person is insufficient to ground a conviction.
For a prosecution under the general offence of fraud under section 380 of the Criminal Code, the Crown must prove the following:
• That there was a dishonest act, established by proof of deceit, falsehood or other fraudulent means;
• That there was a corresponding deprivation of another;
• The accused had subjective knowledge of the prohibited act at the time that it took place;
• The accused intended, or had subjective knowledge that the prohibited act could have as a consequence the deprivation of another.
Importantly, wilful blindness may satisfy the knowledge element of the offence.
Is there a Mandatory Minimum Penalty for Fraud?
As a result of the Federal Government’s amendments to the Criminal Code under Bill C-21, frauds under section 380 may now attract a mandatory minimum sentence.
Where a fraud is prosecuted by way of indictment, and the total value of the subject-matter of the offences exceeds one million dollars, the court must impose a two-year minimum sentence. This means that convicted offenders for frauds over one million dollars will no longer be eligible to serve conditional sentences. The Court of Appeal for Ontario just recently affirmed that this section is constitutional.
What are Some Aggravating Circumstances Applicable to Sentencing for a Fraud Offence?
Under the Criminal Code, the following are considered to be aggravating factors that may act to increase the ultimate sentence imposed upon an accused:
• The significant magnitude, complexity, duration or degree of planning of the fraud;
• The fact that the fraud had the potential to adversely affect the financial system or a Canadian market;
• The fact that the fraud involved a large number of victims;
• The fact that the offence had a significant impact on the victims given their age, health or financial situation;
• A failure to comply with a licensing requirement or professional standard;
• The fact that the offender concealed or destroyed records related to the fraud.
What are Some Potential Defences to a Fraud Charge?
The defences applicable to a fraud charge depend upon the particular type of fraud offence being prosecuted. In the case of identity fraud, it may be a defence that the identity documents or the name used, do not actually belong to a real person.
In the case of a prosecution for the fraudulent manipulation of stock exchange transactions, expert evidence may be able to establish that the particular actions accorded with industry standards and practices and that there was no fraudulent intent.
In a prosecution for fraud over or under $5,000, it might be argued that there was no fraudulent intention.
In fraud prosecutions, the best defence is often to challenge that the Crown has failed to make out one of the specific elements of the offence, such as the lack of an actual deprivation of another, or the lack of a “guilty mind.”