Fraud Lawyer in Toronto
Fraud is a serious criminal offence, and financial crimes are not to be taken lightly. They can be complicated and building a defence can be nuanced. A fraud lawyer’s expertise offers your best chance at fighting this charge.
What is fraud?
Section 380(1) of the Criminal Code of Canada defines fraud. A person commits fraud when they, by deceit, falsehood, or by some other fraudulent means, defraud the public or any person of any property, money, valuable security, or service. In order to be charged with fraud, the accused must have intended to defraud someone.
The fraudulent activity needs to put the complainant at some sort of financial loss or at least at risk of financial loss. Here, it is important to underscore that your actions do not have to cause another person economic loss. Instead, what matters is that you knew that you were putting the complainant at a risk of economic loss.
In Canada, fraud is classified into two categories: fraud under $5,000 or fraud over $5,000. The elements of the offence are the same for both the offences, the only difference is in the monetary value of the fraud and the sentence if convicted.
Examples of fraud:
- Corporate fraud (such as insider trading);
- Credit card fraud;
- Insurance fraud (such as medical insurance fraud);
- Mortgage fraud;
- Medical fraud;
- Internet fraud;
- Stock fraud;
- Asset fraud (such as claiming costs for your business that are illegitimate); and
- Tax fraud.
If I pay the money back, will my charges be dropped?
People tend to think that if they pay the money back, for example, in case of a money laundering charge, or return the valuables back to the person they defrauded, that the charges against them will be dropped. In some cases, paying the complainant back, also known as restitution, may result in favourable outcomes, such as the withdrawal of charges by the Crown. In other cases, the Crown may continue to prosecute as it is in the public interest. That being said, the judge, at the sentencing stage, may factor in the fact that you paid the complainant back. In either case, it is important to speak to a Toronto fraud lawyer so that you know what to expect and how to proceed.
Are fraud and theft different?
Fraud and theft are similar offences, both of which involve taking money, property, et cetera, that is not yours. And, in both cases, the accused needs to intend to take something that does not belong to them. The difference is that with fraud, the accused attempts to conceal their unlawful act with trickery or deceit. With theft charges, deceit or concealment of the unlawful act is not required.
Fraud charges also tend to be considered more serious. As such, fraud charges also come with heftier and stricter penalties in comparison to simple theft charges.
Arrest and bail:
When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a criminal lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.
You may be released directly by police, or you could be held for a bail hearing, depending on the nature of the fraud and your own personal circumstances (e.g. if you have a criminal record). The police have a few mechanisms for release, which all require you to attend court as specified. If you are released by police, there are likely to be conditions attached to it through what is known as an undertaking. These conditions can be, for example, prohibitions against contacting the victim or attending a certain location.
Although fraud under $5,000 is a hybrid offence (i.e. the Crown has the ability to choose whether to proceed summarily or by indictment), all hybrid offences and some white-collar crime offences, are considered indictable until the Crown elects. As such, you will be asked to attend a police detachment for fingerprinting ahead of your first court appearance.
If you are held for bail, you will be brought in front of a judicial official within 24 hours of your arrest. Not only will a lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.
If you are brought to court for bail, a fraud lawyer can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and a civil fraud lawyer can explain their role and adequately prepare them for court.
Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”
The Crown may consent to your release based on the plan. If they have concerns about the plan, the nature of the fraud, your chance of reoffending, your ability to follow conditions (especially if you have breached bail before), et cetera, they may contest your bail. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified.
There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:
- Whether you are a flight risk (primary ground);
- Whether you pose a threat to the public (secondary ground); and
- Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).
The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.
As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:
- Supervision through sureties;
- Curfews or house arrest, including ankle monitoring;
- Refraining from use of drugs and alcohol;
- Mandatory counselling;
- No contact with certain individuals, such as the victim; and/or
- Restrictions on where you can travel and who you can visit.
When making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.
If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a fraud lawyer in Toronto maximizes your chances of being released.
It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.
Once you are released by police or a bail hearing is conducted, a fraud investigation lawyer can start preparing a successful defence for your case.
A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a fraud recovery lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.
In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. Disclosure for financial crimes can be especially complicated. A lawyer will review these documents and can use them to effectively advocate for you.
A fraud investigation lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.
If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.
There can be a number of court appearances before a case is set down for trial or a plea is entered. A fraud recovery lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.
If you are charged with fraud over $5,000, and the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, a judge alone in the Superior Court, or a judge and jury in the Superior Court. Since fraud over $5,000 carries a possible sentence of 14 years in prison, you will also be entitled to a preliminary inquiry for those offences, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. Making your election and having a preliminary inquiry are strategic decisions. You will no doubt benefit from the support of a fraud insurance lawyer advising and guiding you through this lengthy and complicated process.
It is important to note that even if the Crown elects to proceed by indictment for a fraud under $5,000 charge, you do not have the option to choose your mode of trial. It must be tried by a provincial court judge.
Consequences if found guilty:
The consequences of fraud vary depending on whether you are found guilty of fraud under or over $5,000. For fraud under $5,000, the Crown can proceed summarily or by indictment. If proceeding by summary conviction, you could face up to two years less a day in prison and/or a fine of up to $5,000. There are also an alternative, more lenient sentences available where you could face no jail time. If the Crown proceeds by way of indictment, you could face a maximum sentence of two years.
For fraud over $5,000, the Crown must proceed by indictment, and you will face a maximum sentence of 14 years in prison. If the fraud involved public markets, the Crown must also proceed by indictment with a maximum sentence of 14 years.
The Criminal Code lists aggravating factors that the court must look at when crafting a fit sentence. The court must consider whether:
- The magnitude, complexity, duration or degree of planning of the fraud was significant;
- The fraud adversely affected or had the potential to adversely affect the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in the financial market;
- The fraud involved a large number of victims and had a significant impact on these victims, especially given their age, health or financial situation;
- In committing the fraud, the offender took advantage of the high regard that they held in the community;
- The offender complied with licensing requirements of professional standards; and
- The offender concealed or destroyed records related to the fraud.
In addition to this list, the court will also consider it to be an aggravating factor if the monetary value of the amount defrauded exceeds one million dollars. If the value exceeds this amount, there is a mandatory minimum of two years in prison.
In conjunction with these jail terms, a restitution order could also be imposed, requiring you to compensate the complainant for their loss. Additionally, you could face a fraud prohibition order, which would prevent you from continuing or obtaining employment that allows you to have authority over the real property, money, or valuable security of another person. This order can have serious consequences for your employment. A lawyer can help you understand the potential consequences of the charge and advocate on your behalf to obtain the best possible outcome in the circumstances.
It’s vital to hire a fraud lawyer
Being charged with a criminal offence, such as fraud, is a stressful and tolling experience. It is important to seek professional advice from a fraud lawyer in Toronto about your rights from the beginning.
A lawyer can also do much more. They can:
- Work to secure your release with the most favourable conditions;
- Help you navigate the criminal justice system;
- Ensure that the Crown meets its disclosure obligations;
- Identify systematic or administrative errors in the criminal process, including Charter rights violations;
- Speak to the Crown on your behalf, negotiate, and advise you of your options;
- Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
- Gather further evidence to support your version of the events and consult financial professionals;
- Obtain a more lenient sentence in the event a guilty plea or conviction is entered.
All criminal cases are complex and fact specific. We have provided general information about how fraud cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.