Most fraud cases begin as investigations by agencies or companies outside of police jurisdiction, such as the Competition Bureau, Ontario Securities Commission or various employment professional colleges/societies.
For fraud to be proven, a Crown prosecutor must prove both its act (actus reus) and intent (mens rea). When it comes to defense strategies in fraud cases, challenging mens rea tends to be key.
Theft
Theft of property involves taking something that belongs to someone else without their consent, making it a less serious crime than burglary and robbery but still carrying serious repercussions if found guilty. In Canada, theft offenses range from minor incidents such as retail shoplifting up to more serious offenses like automobile and other property theft.
Caretakers who steal medication or financial documents from those they're hired to care for could face jail time under the Criminal Code; even if they had no possession or ownership interest in what was stolen.
Theft over $5,000 is considered a serious crime and usually prosecuted as an indictable offence by the courts, though in certain circumstances Crown prosecutors can use their discretion and pursue it as a summary conviction instead. These hybrid offences allow the Crown to tailor their approach according to factors like prior criminal history.
Fraud
Fraud refers to any act or series of acts committed with dishonest intent which result in theft of property. Like theft, fraud is an indictable offence in Canada with penalties dependent on its value.
Fraud can occur when an act results in actual or potential deprivation for its victim, either in terms of loss or risk. Examples of fraud may include criminals contacting businesses and sellers via email purporting to be suppliers and asking that bank account details on financial systems be changed.
At the root of all forms of fraud lies an individual who believes they can avoid detection by concealing their crime and acting illicitly in some form or fashion. They see an opportunity in using their position of trust to exploit someone's position against them in order to obtain money or another benefit illegally at someone's expense.
Breach of Trust
Breach of trust is an extremely serious criminal offence, covered by section 336 of the Criminal Code and carrying a maximum prison sentence of 14 years.
Key elements of an offence of conversion of property entrusted are conversion of said thing and intent to defraud. Before being charged with this offense, the Crown must establish both elements.
My colleague Gordon Campbell has dedicated much of his career to prosecuting complex fraud cases as a Federal Crown Prosecutor and then defending clients charged with similar offenses in provincial courts - such as violations under the Criminal Code, Income Tax Act and Customs Act as well as other provincial or federal statutes.
Two church members from Kapuskasing in northern Ontario were recently charged with breach of trust after an Ontario Provincial Police (OPP) investigation uncovered various unauthorised money transactions at their places of worship that used funds to support an extravagant lifestyle they could not afford, according to news stories.
Aggravating Factors
The Crown must establish that those accused knew their conduct constituted dishonest behavior and understood its potential deprivations consequences. Fraudulent conduct typically results іn actual deprivations оf money оr property оr valuable security; similarly tо theft, mens rea must also be established.
Fraud can carry severe penalties, and conviction may result іn permanent criminal records that will prevent you from finding work іn certain fields. Hiring the appropriate lawyers dealing with fraud and theft іs vital tо your success іn such an instance.
People charged with theft оr fraud often engage іn іt for some time before being discovered by their employer's auditor, loss prevention investigator, оr police. Our Firm successfully secured the withdrawal оf 13 theft-related charges against R. v. M.K [2020], including cases involving retail theft where employees have allegedly stolen merchandise for their employers before returning іt back into stores.
