Toronto Fraud Lawyer

Introduction

If you’ve been charged with Fraud (whether it be Fraud Under or Over $5,000), you’re in the right place.  Andrew Captan, the author of this article, is an experienced Toronto Fraud Lawyer, with a particular interest in Employment Theft cases. 

A number of FAQs are answered by this Toronto Criminal Lawyer.  If you would like to schedule a consultation with him about your Fraud case, call (647) 878 – 6355, e-mail andrew@captanlaw.com or visit his main website HERE.

What is Fraud in Toronto, Ontario

To begin with, Fraud is a crime.  It is set out in the Criminal Code of Canada.  Accordingly, it is a crime that is the same Canada wide — not just in Toronto.

According to section 380(1) of the Criminal Code of Canada, “[e] very 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,

• (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
• (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”

In the Criminal Code, Fraud Under and Over $5,000 (referenced above) are the most commonly laid Fraud-related charges that Toronto Fraud Lawyers deal with.  There are other Fraud related charges in the Criminal Code that relate to specific activity, including:

• Fraudulent use of mail
• Fraudulent manipulation of stock exchange transactions
• Fraudulent insider trading
• Identity fraud

What is the legal test for Fraud

Every Toronto Fraud Lawyer, or Toronto Employment Fraud Lawyer, will always refer to the foundational legal test for any Fraud charge they are dealing with.  The legal test is applied in every single case, without exception.  If a specific incident falls outside a legal test, then a prosecution will (or should) eventually fall apart at some point – whether it be before a trial or at trial.

For every crime, there are two components that must align for someone to be found guilt of it — the prohibited act and the prohibited state of mind.  The former is legally known as the “actus reus” and the latter is known as “mens rea”.

The Supreme Court of Canada, in R. v. 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 mens rea of the crime 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).

How serious is Fraud

Any criminal offence is serious.  The reason is that for every charge in the Criminal Code of Canada, the accused person risks receiving a criminal record.  A criminal record lasts a lifetime.  Retaining an experienced Toronto Fraud Lawyer to assist you with your defence, therefore is crucial, even if you are facing a low level Fraud charge.

Fraud charges will range in levels (or seriousness) depending on a number of factors.  A non-exhaustive list of such factors include:

• The person’s prior record (if any)
• The person’s age
• Whether the person is alleged to have committed a Fraud in the context of a position of trust (such as being an employee)
• The value of property that was defrauded (the higher the value, the more serious the crime)
• The number of incidents that took place (the greater the number, the more serious the crime)
• Whether the accused committed the crime against a vulnerable person (such as an elderly individual)

What is employment Fraud

There is no specific crime called employment Fraud under the Criminal Code.  Employment fraud, at the very minimum, would be captured in the Fraud Under or Over $5,000 offence framework that is listed above. 

An employment Fraud is essentially fraud that takes place within the course of one’s workplace. A Toronto Employment Fraud Lawyer, if you speak to one, will immediately advise you that this is a more serious form of Fraud, given that a breach of trust has occurred.

How serious is employment Fraud

Employment Fraud is serious.  Very serious.

According to s. 718.2 of the Criminal Code, it is an aggravating factor in sentencing to commit an offence while abusing one’s position of trust or authority (see s. 718.2(a)(iii)). 

Toronto Employment Fraud Lawyers will often see the following types of cases within this context:

• Employees manipulating books for their own benefit;
• Employees processing fictitious or “ghost” returns of product onto their own cards
• Employees writing company cheques to their own accounts rather than to legitimate sources

If you are charged with Employment Fraud, you should immediately seek legal advice from an experienced Toronto Employment Fraud Lawyer, as the risk of Jail is real, even for low-level, one off incidents where no significant loss occurs.

Is Fraud Over $5,000 a “felony”

This really is a trick question!  There is no such thing as Felonies (or Misdemeanours) in Canadian criminal law.  Here, we have Summary Conviction and Indictable Offences.    Fraud is known as a hybrid criminal offence, as it can be treated either as a Summary Conviction matter or an Indictable one.

What is the sentence for Fraud Over $5,000

There is no set sentence for Fraud Over $5,000.  There also is no minimum punishment. The maximum punishment is 14 years imprisonment.  A Toronto Fraud Lawyer has the following potential sentences available to seek in a Fraud Over $5,000 case:

• A fine
• A fine and probation
• A suspended sentence of imprisonment and probation
• A conditional sentence of imprisonment
• Imprisonment (maximum being 14 years)

What is the sentence for Fraud Under $5,000

Just like Fraud Over $5,000, there is no set sentence for Fraud Under $5,000.  Fraud Under attracts lower penalties than Fraud Over in most cases (but not always).  There is no minimum punishment for Fraud Under $5,000 and the maximum sentence is a $5,000 and/or 2 years less one day of jail.

In addition to the sentences available for Fraud Over $5,000, a Toronto Fraud Lawyer also has a Discharge (either Absolute or Conditional) at his/her disposal, which, if imposed, would not lead to the entry of a permanent criminal record. A Discharge, by contrast, is not available for Fraud Over $5,000, because Discharges are ruled out for any crime for which there is a maximum sentence of 14 years imprisonment (or longer).

Can you go to jail for Fraud in Toronto, Ontario

Yes – you are at risk of a jail sentence for any Fraud offence, even Fraud Under $5,000.  Jail is not a likely sentence for first time offenders who are otherwise of good character and have not abused the trust or authority of another person (or business). 

Experienced Toronto Fraud Lawyers will know that Jail sentences become more likely where:

• There is a breach or abuse of trust
• The fraud was perpetrated on a very vulnerable victim, for whom the impact of the fraud was significant
• The financial loss of the fraud was significant (or large scale)
• The frauds were very premediated, calculated and drawn out over a period of time

How do I press fraud charges in Toronto, Ontario

If you are the victim of a Fraud, the starting point is to make a complaint with your local police force so they can investigate. If the police force believes they have reasonable grounds to believe another person committed the offence of Fraud, the police would lay criminal charges against the individual.

How do I beat a Fraud case

Fraud cases may be simple or complex.  A Toronto Fraud Lawyer will have to review your disclosure and determine the best legal strategy for you.  Some potential legal strategies to “beating” a Fraud case include:

• Providing evidence that you could not have been the one who committed the crime (such as an alibi)
• Establishing that you had a colour of right (or lawful authority) to engage in the act you did
• Establishing there was no dishonesty or deceit in what you did

Winning a fraud case, in some circumstances, means resolving the matter without a trial, and pleading guilty in order to minimize the severity of punishment.  Often time, pleading guilty may lead to a much more lenient sentence as compared to losing your trial. 

Some of the following steps can help minimize sentence severity in your case (but be sure to always consult with a Toronto Fraud Lawyer before engaging in any step in your case):

• Completing community service hours
• Making a charitable donation
• Completing counselling relating to the root causes of why you engaged in the offending behaviour
• Making restitution

Andrew Captan – Toronto Fraud Lawyer

Andrew Captan is an experienced Toronto Fraud Lawyer, practicing in criminal law for over 12 years. You can reach him at (647) 878-6355 or by e-mail at andrew@captanlaw.com. For all individuals charged with Fraud, Mr. Captan’s aim is to keep your record as “clean” as possible, offering an honest and practical approach to your defence.