Fraud Defence Lawyer
Fraud is a financial crime. It is also a crime of dishonesty, where the offender causes the victim to part with property or to suffer a financial loss. The number of ways that one person can defraud another is limited only by imagination. Fraud can involve the exploitation of a vulnerable segment of society, such as the aged or the mentally challenged; it can involve lies and deceit, or deliberate nondisclosure.
Fraud cases have been in the news recently, as the economic situation has revealed investment funds to have been dishonest “Ponzi” or pyramid schemes; or because officers and directors of corporations have been charged with manipulating corporate accounting and financial records.
The Law of Fraud
“Fraud” is not defined in the Criminal Code. Its meaning is derived from an examination of various cases that have defined it over the years. The Code describes the offence of fraud as follows:
- Fraud380. (1) Every 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.
Fraud and related financial crimes takes up an entire section of the Criminal Code. Related offences include theft; forgery; breach of trust; securities violations; false pretences; personation; money-laundering; and the list goes on.
Canada has often been seen as a safe haven for so-called “white-collar” crimes. That is changing, as the government strengthens oversight, increases penalties, and devotes more resources to combating financial crime.
The following section of the Criminal Code illustrates how penalties have been changed to reflect the nature of certain financial crimes, where a seemingly trustworthy and responsible individual has defrauded large numbers of people:
Sentencing — aggravating circumstances
380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in sections 380, 382, 382.1 and 400, it shall consider the following as aggravating circumstances:
- (a) the value of the fraud committed exceeded one million dollars;
- (b) the offence 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 such a financial market;
- (c) the offence involved a large number of victims; and
- (d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community.
Non-mitigating factors
(2) The court shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence.
2004, c. 3, s. 3.
Fraud cases are usually investigated and prosecuted by special units within the police force and the prosecutor’s office. They use special tools, including search warrants and bank requisitions. All of Canada’s major financial institutions have corporate security departments staffed with former police officers and investigators, and they have almost unlimited financial resources to assist the government in tracking and prosecuting financial crime.
Defending Fraud Cases
At The Defence Group, we have a lot of experience with both the prosecution and the defence of financial crimes. These cases rely primarily on documents, and inferences drawn from them by way of forensic analysis and expert evidence.
We will work with you or your company at every stage to identify opportunities to avoid or defend against prosecution, including providing you with timely advice from the moment that criminal activity is suspected, or a search warrant is executed. Unlike other cases, these cases often begin before charges are laid, because financial crimes investigations are lengthy and complex. Often the institution or investigators will try to entrap suspects into committing an offence, or will be monitoring their activities for some time.
To advise and defend you, we will retain the necessary experts to outline and explore alternative theories and to dissect the analysis of the government’s experts. We will scrutinize the conduct of all government agents to determine whether your Charter rights have been respected. One fruitful area here is to turn to your advantage any bureaucratic delay or nondisclosure by the government which has resulted in undue delay in the proceedings, beginning from the start of the investigation. And we will require the Crown to prove each and every element of its case, which, because of the detailed and complex nature of these investigations, will reveal loopholes or shortcomings in their case every time; there is no such thing as an “airtight” fraud case.
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