If you have been charged with fraud, you have come to the right place. At Aitken Robertson, our knowledgeable and skilled criminal defence lawyers regularly handle fraud charges. You may be confused and worried about your charge, and understandably so. Keep reading to learn about how fraud charges are dealt with under the Criminal Code of Canada.
According to the Criminal Code, Fraud is defined in section 380(1) as follows:
380 (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.
As you can see, there are a number of complex elements in the way in which the criminal offence of fraud is laid out. Let us try to simplify it for you.
The Crown’s Onus to Prove the Offence
The Crown has to be able to prove the elements of the offence of fraud beyond a reasonable doubt in order to secure a conviction. In particular, the Crown will have to show the following:
- The identity of the accused
- The date and time of the incident
- The jurisdiction the offence took place including region and province
- That the complainant owned something of value(property, money, valuable security, or a service)
- That the accused deprived the complainant of something of value or was put at risk of losing something of value
- The ownership, value and continuity of the property, money, or service, including whether it is over $5,000 or under $5,000
- That the deprivation must have been caused by deceit, falsehood, or other fraudulent means
- That the accused intended to defraud the complainant or had knowledge that the conduct could result in deprivation
With respect to the documents involved in the alleged fraud that took place, the Crown will have to show the following:
- The date and time of any false documents
- The jurisdiction(including region and province) where documents were signed
- The identity of person who signed the documents
- Whether any documents were made “in the ordinary course of business” pursuant to the Canada Evidence Act
The essential elements to be proven are the date and time, jurisdiction and identity of the accused.
The Actus Reus and the Mens Rea of the Offence
The actus reus refers to the alleged criminal “act” and the mens rea refers to the “mental intent” of the accused to commit the alleged act. The actus reus is made out by the Crown where:
- there was a prohibited act of deceit, a falsehood or some other fraudulent means
- there was a deprivation caused by the prohibited act, either an actual loss or a pecuniary interest at risk.
The two essential elements to be proven are the dishonesty and deprivation to prove the offence of fraud. The issue of actus reus is determined objectively as to whether a reasonable person would consider the conduct to be “dishonest”.
The mens rea is the subjective awareness of undertaking the prohibited act and awareness of the risk of depriving another of property. The awareness of the risk of deprivation includes recklessness as to the knowledge. The personal feelings of the “morality or honesty” of the act is irrelevant.
Where an accused person makes use of the funds obtained through wilful blindness, it will be considered dishonest. “Dishonesty” is determined on an objective standard determined by what a reasonable person would consider dishonest. Dishonesty can also include non-disclosure where a reasonable person would consider it dishonest.
A mistaken belief that the complainant owed the accused money will not justify the collecting of the funds by deceit. Where the accused person knew that he or she was undertaking the prohibited act that could cause a deprivation to the complainant but hoping that the deprivation would not take place cannot be a defence.
A few examples of fraud are:
- breach of trust
- material non-disclosure
- breach of contractual obligations
- fraudulent misrepresentation
- misuse of assets
- unauthorized diversion of funds or property
The Aitken Robertson Team
As evidenced above, the offence of fraud carries with it legal complexities that our criminal defence lawyers are trained to handle. With years of practical experience and a solid understanding of criminal law, our lawyers can work with you to advance a defence. Call our office for a telephone or in-person 30-minute free consultation to discuss your case and how we can assist in your defence.