Fraud is a dishonest act of deceit or falsehood that causes the victim some sort of financial loss, or that puts the victim at risk of some sort of financial loss. There are a number of different types of fraud in Canada, such as welfare fraud, credit card fraud, insurance fraud, bank, fraud, and fraud from an employer, to name some examples. No matter what type of fraud you have been charged with, for you to be convicted of fraud the Crown Prosecutor must prove all of the following elements beyond a reasonable doubt:
- That there was a dishonest act, or an act of deceit or falsehood;
- That there was some sort of economic loss or deprivation suffered by the targeted complainant, or that the complainant was put at a risk of pecuniary loss;
- That you were subjectively aware of the fraudulent act; and,
- That you knew that the act would cause another economic deprivation, or that you were wilfully blind or reckless as to whether the act would cause another economic deprivation.
With respect to the mens rea, or the knowledge component of fraud, it is important to stress that in order to be convicted of fraud, you need not actually cause another person tangible loss. Rather, the mere knowledge that you were putting someone at risk of loss is enough. As such, if you are charged with fraud, you will not be able to defend yourself by saying you actually had no intention of causing the complainant to suffer a loss. So long as you took an action while knowing that you were putting the victim’s pecuniary interests at risk, you can be found guilty of fraud.
Will My Fraud Charges be Dropped if I Pay the Money Back?
Sometimes people believe that if they pay the money back the charges against them will be dropped. Unfortunately, this is not the case. While the restitution or return of the stolen funds may be a necessary condition imposed on you following sentencing, returning the funds will not halt the proceedings against you, even if the complainant no longer wishes to press charges against you. Once a police report has been filed, the Crown Prosecutor is in control of the matter, and they can and often will continue to prosecute you with or without the victim.
The Penalty for Fraud in Canada:
The sentence that will follow a conviction for fraud will depend heavily on circumstances of your case, such as what you took, the value of what you took, and from whom you took it. One of the most important factors when it comes to sentencing for fraud is whether you are found guilty of fraud over $5000.00 or fraud under $5000.00. Fraud over $5000.00 is the more serious of the two offences, and if convicted you will have been found guilty of a straight indictable offence and will be liable for a term of imprisonment not exceeding 10 years.
If you are found guilty of fraud under $5000.00, you will be guilty of a hybrid offence, and the nature of your penalty will depend in part on whether the Crown decided to prosecute you summarily or by indictment. Even if the Crown chooses to prosecute you summarily, you can still face up to six months in prison.
Another important factor that will play a significant role in determining how you are sentenced is whether you breached a position of trust when committing fraud. To deter people from breaching positions of trust, trust fraud is taken very seriously and punished heavily. The most common type of fraud that involves a breach of trust is fraud from an employer. Often people will take advantage of their position in a company and use their knowledge of the company’s procedures to fraudulently misappropriate funds. Because this type of crime happens so frequently, and because it can have such an adverse impact on businesses, fraud in the context of an employer-employee relationship is often punished very heavily. In fact, if you have been charged with fraud from an employer, it is not abnormal for the Crown Prosecutor’s starting position to be a period of incarceration upon conviction.
Whether you have commit fraud involving a breach of trust or not, there are a number of aggravating factors that can dramatically increase the severity of your penalty for fraud including:
- A highly complex plan. A highly complex plan that required significant planning and deliberation over time will tend to increase your moral culpability and the severity of your sentence.
- How many people the fraud affected, and whether it affected the economy or financial market. The farther reaching the consequences of your fraud, the more serious your penalty will be.
- Who you defrauded. It will be considered a highly aggravating factor if you took advantage of relatively helpless individuals when committing your fraud. For example, people in precarious health or financial situations like seniors.
- If you exploited your regard or reputation in the community. If prior to your fraud you were a well-respected part of your community, and you used the power or trust that came with that position to defraud others, you will receive a harsher penalty.
- If you concealed or destroyed documents or records that were related to the fraud.
- If you breached professional regulations and standards. For example, if you breached the professional regulations that apply to medical professionals or accountants.
Given that so many factors are considered when the punishment for fraud is being determined, if you have been charged with this offence contact one of our criminal defence lawyers immediately. With the significant experience that we have gained through defending a variety of fraud charges, we will be able to provide you with an accurate assessment of the jeopardy you are facing and help you identify any defences you may have available to meet your charges.