Fraud Lawyers in Canada

The Crown is the prosecutor. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty according to law, so the Crown is the side that has to prove the charge. Section 11(c) adds that a person charged has the right not to be compelled to be a witness in proceedings against them in respect of the offence.

Section 380(1) is built from a few parts. There must be deceit, falsehood or other fraudulent means. The deceit, falsehood or other means must defraud the public or any person, and the section adds the words whether ascertained or not. What is taken must be property, money or valuable security, or a service. Each of those parts is a question of evidence in the case.

Value matters because it sets the penalty. Section 380(1)(a) applies where the subject-matter is a testamentary instrument or its value exceeds $5,000. Section 380(1)(b) applies where the value does not exceed $5,000.

Section 380(2) is a separate offence. It applies to a person who, by deceit, falsehood or other fraudulent means, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public.

Where the subject-matter is a testamentary instrument or exceeds $5,000, section 380(1)(a) makes fraud an indictable offence with a maximum of fourteen years in prison. Where the value does not exceed $5,000, section 380(1)(b) allows two routes. It is either an indictable offence with a maximum of two years, or an offence punishable on summary conviction. Section 380(2) carries a maximum of fourteen years.

For a summary conviction offence, section 787(1) sets a fine of up to $5,000, imprisonment of up to two years less a day, or both, unless the law provides otherwise.

Section 380(1.1) sets a minimum punishment. When a person is prosecuted on indictment and convicted of one or more offences under section 380(1), the court shall impose a minimum of two years in prison if the total value of the subject-matter of the offences exceeds one million dollars. The minimum depends on the total value across the offences.

A maximum or a minimum is a limit set in the law. It does not say what sentence a court would give in any case.

Other sections add to the sentencing rules. Under section 380.1(1), a court that sentences a person for fraud shall consider certain aggravating circumstances, among them that the magnitude, complexity, duration or degree of planning of the fraud was significant, that the offence involved a large number of victims, and that the offender concealed or destroyed records related to the fraud. Section 380.1(2) says the court shall not consider as mitigating 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.

Section 380.2(1) lets a court make an order prohibiting the offender from seeking, obtaining or continuing employment, or from being a volunteer, that involves having authority over the real property, money or valuable security of another person. Breaching that order is an offence under section 380.2(4). Under section 738(1), a court may also order restitution to another person, for example up to the replacement value of property that was lost.

A person charged with fraud is not required to prove anything. The Crown must prove the parts of the charge described above. Whether it has done so is for the court to decide on the evidence.

Charter rights apply from the start. Section 10(b) gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. Section 8 gives everyone the right to be secure against unreasonable search or seizure. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

Section 11(b) gives a person charged with an offence the right to be tried within a reasonable time. Section 24(1) lets anyone whose Charter rights were infringed apply to a court for a remedy. Whether a right was infringed in a particular case is a question for the court.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones, such as murder, manslaughter, firearm offences and drug trafficking.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says the decision maker gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

Appeals depend on how the case was prosecuted. A summary conviction appeal goes, for a case decided in Ontario, to the Superior Court of Justice sitting in the region, district or county where the case was decided. An appeal from a conviction on indictment goes to the court of appeal. Section 675(1) allows an appeal as of right on a ground that involves a question of law alone. An appeal on a question of fact or of mixed law and fact needs leave, and so does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer for the length of the criminal case. Applications are online or by phone at 1-800-668-8258. The Law Society of Ontario keeps a public Lawyer and Paralegal Directory where a lawyer's licence can be looked up. This site lists Ontario lawyers by city, and nothing on this page ranks or recommends any of them.