INTRODUCTION AND BRIEF DESCRIPTIONSection 380(1) Fraud is the wrongful or criminal deception intended to result in financial or personal gain. The definition of Fraud is left ambiguous in order to capture the vast nature that these offences occur. There are many examples of Fraud, but most commonly seen are Telemarketing scams, online scams, Identity Theft and Business scams.
SECTION WORDING380(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.
EXPLANATIONThe offence of Fraud captures an extremely wide range of behaviour. Each charge of fraud is different from the next, as there are a wide variety of circumstances that can amount to a fraud charge. Canadian Criminal Courts have determined that the offence of fraud consists of two distinct elements. First, a prohibited act of deceit, falsehood or other fraudulent means. In the absence of these, the courts will look objectively for a “dishonest act”. Secondly, the deprivation or loss must be caused by the prohibited act, and must relate to money, property or any valuable security or service. Thus, by this determination, one could potentially be charged with fraud for stealing money from clients, or by stealing someone’s identity. If you or someone you know has been charged with Fraud, then you should contact a criminal defense lawyer immediately.
COMMENTARYIn R. v. Olan et al., the Supreme Court of Canada established a definition of fraud that included elements of “dishonesty” and “deprivation”. In R. v. Stewart, the Supreme Court of Canada ruled that deprivation of confidential information, in the nature of a trade secret or copyrighted material that has commercial value, is to be considered within the scope of fraud. In 2004, section 380(1)(a) was amended to increase the maximum penalty from 10 to 14 years. In 2011, section 380(1.1) was added to include a mandatory minimum sentence of 2 years’ incarceration for offences over $1 million.
STRATEGYFraud is a very serious offence with potential life altering outcomes if not attended to correctly. There are multiple different strategies when it comes to fraud cases, and a criminal defense lawyer should be contacted to ensure the best results for you. The strategy will be determined by the specific facts of each case. In any case, a potential defense is successful if it absolves the accused from full or partial liability for damages.
QUESTIONS AND ANSWERS| Q. | | Is there a mandatory minimum punishment for Fraud?
| | A. | | The punishment for Fraud is set out within this section. As of 2011, mandatory minimum sentences may apply, if the total amount determined to be lost is over $1 million. The mandatory minimum is 2 years incarceration.
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RELATED CASES| R. v. OShea | | Offender wrote fraudulent cheques to herself and a partner, with amount totalling $110,169. She was sentenced to 18 months custodial sentence as well as 18 months probation. One condition of probation was not being able to hold employment in any capacity where she would be in control of financial situation of others.
| | | | | R. v. Saluma | | Offender pled guilty for fraudulent activity that involved the Canadian Temporary Foreign Worker Program and totalled over $2.4 Million dollars. There were over 900 victims of the fraudulent activity. She was sentenced to 6 years in custody.
| | | | | R. v. Zentner | | Offender was a funeral director in Lethbridge. He pled guilty to fraud under $5,000. The offender was selling body disposal at a price of $250, rather than the actual price of $195. This happened on approximately 35 occasions. As well, he would defraud the Alberta provincial government by swapping the caskets of Social Services clients for less expensive options. He was sentenced to a conditional discharge.
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RELATED LINKS| https://www.paullewandowski.com/criminal-defence-lawyer/fraud.php | | A criminal lawyer discusses the charge of fraud and other related charges
| | | | | sexual-assault-reduced | | It is unfortunately, no unusual for a complainant with a mental illness to imagine assaults that never occurred. The problem with such witnesses, is that they honestly believe their memories to be true, but in reality, they are not. In this case, the complainant has imagined - in a drug induced stupor - that she had been raped. During cross-examination by Paul Lewandowski, she admitted that she couldn't tell fiction from fantasy. The sexual assault charge was reduced to a simple assault. The client was given a conditional discharge, and was spared a criminal record.
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