Because every case is unique, the best defence for your fraud charges will depend heavily on the circumstances of your offence, as well as the evidence that the Crown Prosecutor has against you. As such, if you have been charged with fraud, you should consult with a criminal defence lawyer immediately to find out what defences are available to you in your particular case.
However, some common defences to fraud include: arguing that you did not have the fraudulent intent required to be guilty of the offence; that there was no loss or risk of loss to the complainant; and arguing that evidence against you should be excluded from trial because it was gathered in violation of your Charter rights.
Lack of Fraudulent Intent:
Firstly, one strong defence to fraud would be to argue that you were not aware that your actions were dishonest or fraudulent. Without a subjective awareness that you were committing fraud, you cannot be convicted of this offence. For example, one scenario where there could be fraud without fraudulent intent would be if you were selling goods that you honestly believed to have certain characteristics, when in fact they did not. For example, if you sold an item that you legitimately believed was a certain brand, and you held it out to be that brand despite the fact it was a fake, you would not have the fraudulent intent required to be guilty of this offence.
However, it is important to note that this defence will not work if you were reckless or wilfully blind to the fact that the item was a fake. For example, if you first acquired the item from someone who was known to sell fake goods and there was therefore good reason to think your item was also a fake, you may be found to have been reckless or wilfully blind to the fact that the item you were selling was a fake.
No Risk of Loss:
Another possible defence to a fraud charge is to argue that the act in question did not result in any form or risk of deprivation. Because an essential element of a fraud is that there was some loss or risk of loss to the complainant, with no risk of loss there can be no offence. As loss on the part of the complainant only becomes possible once there is some transfer of assets or pecuniary interests, you may be able to avail yourself of this defence if you can prove that such a transfer never occurred. However, be aware that while you may be able to prove that you were not guilty of fraud itself, it is still possible that you can be found guilty of conspiring to commit fraud.
Charter Defences
The prosecution of fraud charges is often very document driven for much of the evidence against you will likely be found in records of transfers and transactions. It may also be possible that in obtaining these documents or other evidence against you, that the police either deliberately or inadvertently violated one or more of the rights guaranteed to you under the Canadian Charter of Rights and Freedoms. For example, your right to be free from unreasonable search and seizure could be violated if the police used a defective warrant to seize evidence of your offence, or if they seize evidence of your offence without a warrant and without adequate grounds. If there has been a violation of your right to be free from unreasonable search and seizure, your defence lawyer can make a Charter motion to exclude any evidence gathered by virtue of the illegal search. If successful, it is possible that evidence that would be needed to convict you is prevented from being entered in your trial, and that the Crown no longer has the evidence required to prove that you are guilty of the offence.
