What is Fraud?

Simply put, fraud is the crime of stealing by deception. In Canada, fraud is prohibited by section 380 of the Criminal Code. For prosecutors to prove that fraud has occurred, they must show the following elements beyond a reasonable doubt:

  1. You either:
    1. Lied; or
    2. Deceived someone; or
    3. Used other fraudulent means and;
  2. You deprived someone of their money, property, security, or service.

Section 380 of the Code also separates the crime of fraud into two separate branches: fraud under $5000 and fraud over $5000. Frauds under $5000 are always prosecuted in a provincial court (e.g. the Ontario Court of Justice), while frauds over $5000 can be prosecuted in either a provincial court or a superior court.

Fraud is the crime of deceiving someone to deprive them of something of value.

Because of the broadness incorporated into the concept of “stealing by lying”, fraud can take multiple forms. Some examples include:

  • Lying that deposits for a construction project are insured to get construction contracts from depositors ( v. Théroux)
  • Duplicating copyrighted video cassettes and profiting from them (R v Kirkwood).
  • Getting goods for people for post-dated cheques as assurances, selling the goods, and then gambling with the proceeds (R v Zlatic).

If you are charged with fraud, there are two things that you should do:

  • Stay silent: Your right to silence is a protected Charter In the interrogation room, you and the police have opposite goals. You want to leave and the police want to get a confession from you. The police can use almost any trick (including lying to you, scaring you, and playing “good cop-bad cop”) to make you confess. The interrogation room isn’t the time to play the uneven game of defending yourself. Stay silent.
  • Hire an attorney: A criminal lawyer is your best ally in defending a fraud charge. Defending a fraud case can be complicated, involving planting seeds of doubt, eliminating evidence that was seized without respecting your Charter rights, and negotiating with Crown attorneys. Speaking to a lawyer at your first chance can help you better understand what options and strategies you have available to you.

Some of the strategies that we can use to defend fraud charges include:

  • Excluding evidence that violates your Charter
    • We can make it more challenging for the prosecution to build a case against you by eliminating evidence that was seized without regard to your section 8 Charter right and/or involuntary testimony you gave to police.
  • Showing that you lacked fraudulent intent.
    • For every crime, Crown prosecutors have to prove two elements: the actus reus or “bad act” and the mens rea or “guilty mind”. By showing that you lacked the intention to commit fraud and that you were not reckless or willfully blind to the fact that a fraud was occurring, we can negate the mens rea aspect of the crime.
The sentence for a fraud charge can depend on a number of factors:

  • Crown election
    • If Crown prosecutors elected to prosecute via a summary conviction, the maximum sentence is 2 years less a day imprisonment.
    • For prosecutions by indictment, the maximum penalty is 2 years for frauds under $5000 and up to 14 years in prison for frauds over $5000.
  • Amount of fraud
    • If the fraud is over $1,000,000, there is a minimum sentence of two years imprisonment.
  • Type of fraud
    • If the fraud involved a public market (such as a stock exchange), there is a maximum penalty of 14 years imprisonment.

In addition to imprisonment, a judge may impose other penalties such as a fine of up to $5000 for frauds under $5000 and restitution orders for proceeds from the fraud. There are also alternatives to imprisonment including suspended sentences (probation) and conditional sentences (house arrest) that are available if convicted summarily.

How can our firm help?

Lakin Afolabi Law is a multilingual, empathetic firm that exclusively practices criminal defence. We have over a decade of experience successfully defending criminal charges, including fraud charges. At Lakin Afolabi Law, our approach is unique. From our first consultation on, you play an active role in guiding our strategy. We know the law and you know the facts. Contact us today for a consultation to see how we can help.

Showing that you lacked the intent to commit fraud is one defence against this charge.

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