What is Fraud?
Fraud is a crime of dishonesty and, in short, involves an act of dishonesty or deceit that causes some form of deprivation (usually financial) or risk of deprivation. Actual financial loss is not a requirement for the offence.
Elements of the Offence of Fraud
In Theroux (1993), 79 C.C.C.(3d) 449 at 460 (S.C.C.), the Supreme Court of Canada held that the prohibited act (referred to as the actus reus) of the offence of fraud is:
(1) An act of deceit, a falsehood or some other fraudulent means; and
(2) Deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.
The “guilty” state of mind (known as the mens rea) required for this offence is:
(1) Subjective knowledge of the prohibited act; and
(2) Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist of knowledge that the victim’s pecuniary interests are at risk).
Is Negligence Sufficient for the Offence of Fraud?
Courts have held that if the mental state of an accused falls short of the criminal state of mind referred to above, and amounts to negligence, that might give rise civil liability, but should fall short of criminal responsibility.
What is Willful Blindness?
Even if the Crown Attorney has evidence that falls short of proving actual knowledge of the prohibited act, it may rely on the doctrine of willful blindness to establish guilt.
The doctrine of willful blindness refers to a situation in which a party has his/her suspicion aroused but then deliberately omits to make further inquiries, because s/he wished to remain in ignorance. In this situation, the law imputes knowledge.
In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge. This is frequently expressed by saying that he “shut his eyes” to the fact, or that he was “willfully blind.”
Fraud Under Vs. Over $5,000
Fraud can fall either under or over $5,000. Fraud under $5,000 is a hybrid criminal offence, meaning that the Crown can elect to proceed by summary conviction or indictment. Fraud over $5,000 is a “straight” indictable offence, which potentially significant punishments. Depending on the deprivation in question, either one of these categories will apply. As of November 2012, the Criminal Code of Canada was amended, such that a Conditional Sentence of Imprisonment is no longer available for Fraud (and Theft) Over $5,000.
What is a Breach of Trust?
Toronto Criminal Lawyer Andrew Captan has experience in representing individuals charged with minor Fraud offences (such as price tag “swapping”), to more serious Fraud matters, including large-scale breaches of trust (with hundreds of thousands of dollars at issue).
A “breach of trust” based Fraud involves an accused violating the trust of another party, commonly an employer, by committing the criminal offence against him, or or the company. Mr. Captan has been involved in numerous breach of trust cases, where his clients have received unique outcomes to their cases including avoiding criminal convictions. In a 2016 case, Mr. Captan defended an individual charged with several Fraud offences that were committed against a large retail store over the period of 7 months. A loss of around $24,000 was incurred as a result of the alleged offences. Based on a detailed review of the disclosure, and some up front work completed by the client, the Crown agreed to “divert” the Fraud charges, leading to the charges being withdrawn and the client without a criminal record. Diversion for a breach of trust related Fraud (or Theft) is exceedingly difficult to obtain.
Charged with Fraud Under or Over $5,000? Call Andrew Captan – a Fraud Lawyer in Toronto for a free legal consultation at (647) 878-6355.