section 380.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section lists aggravating circumstances to be considered when imposing a sentence for fraud-related offences, including the magnitude and impact of the fraud, number of victims, and offenders breach of trust or professional standards.

SECTION WORDING

380.1(1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances: (a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; (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; (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation; (d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community; (e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and (f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

EXPLANATION

Section 380.1(1) of the Criminal Code of Canada pertains to the aggravating circumstances that a court should consider when imposing a sentence for offenses related to fraud, including sections 380, 382, 382.1 and 400. The section stipulates various factors that can intensify the severity of a fraud offense, and thus lead to a more severe sentence. The first aggravating factor is the scope and complexity of the fraud, including its duration and level of planning. This factor considers the scale of the fraud and the effort put in by the offender to execute the crime. The second factor considers the negative effects of the crime on the stability of the Canadian economy financial system, or investor confidence in a financial market. A large number of victims is also a factor considered in determining the aggravating circumstances of a case. Furthermore, section 380.1(1) recognizes that the impact of the fraud on the victims' personal circumstances is an important consideration for the court, including factors such as their age, health and financial situation. The offender's level of responsibility is also scrutinized, in particular whether they have acted in an unauthorized or unethical manner or neglected professional standards. Finally, the concealment or destruction of records is another serious aggravating factor deemed punishable by the court. Overall, section 380.1(1) serves as a guideline for the court to consider all relevant aspects of the case and determine an appropriate sentence for the offender based on the severity of the crime.

COMMENTARY

Section 380.1(1) of the Criminal Code of Canada outlines several aggravating circumstances that must be considered when imposing a sentence for offences related to fraud. These aggravating circumstances serve to acknowledge the severity of such offences, which can have far-reaching consequences and significant impacts on individuals, organizations, and the economy as a whole. One aggravating circumstance is the magnitude, complexity, duration, or degree of planning involved in the fraud. This recognizes that some instances of fraud are more elaborate and orchestrated than others, and the level of effort and coordination required to carry out such frauds should be taken into account when determining an appropriate sentence. For example, a fraudulent scheme that involves multiple parties, intricate planning, and sophisticated technology may warrant a harsher sentence than a rudimentary scam carried out by a single individual without much planning. Another aggravating circumstance is if the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system, or investor confidence in financial markets. This recognizes the potential damage that fraud can have on the broader financial system and the many individuals and businesses that rely on it. Fraud can erode trust in financial institutions, reduce investment activity, and even lead to economic instability. If the offence involved a large number of victims, this is also seen as an aggravating circumstance. This recognizes the negative impact that fraud can have on many individuals who may have suffered significant financial losses as a result of the fraudulent activity. Each victim may have been affected differently, but collectively, they represent a large group of people who may have lost their life savings, retirement funds, or investments. If the offence had a significant impact on the victims given their personal circumstances, including their age, health, and financial situation, this is seen as an aggravating circumstance as well. This recognizes that some victims may be more vulnerable or susceptible to financial fraud than others. For example, seniors who are retired and living on fixed incomes may be particularly vulnerable to fraudulent schemes that promise high returns or low-risk investments. If the offender took advantage of the high regard in which they were held in the community, this is seen as an aggravating circumstance. This recognizes that individuals who hold positions of trust, authority, or responsibility may be able to exploit their status to carry out fraudulent activity and deceive others. This type of conduct is particularly egregious and deserving of a harsher sentence. If the offender did not comply with a licensing requirement or professional standard that is normally applicable to the activity or conduct that forms the subject-matter of the offence, this is seen as an aggravating circumstance as well. This acknowledges the importance of professional standards and regulations in maintaining the integrity of various industries and professions. When individuals flout these requirements in the course of committing fraud, they should be held accountable for their actions. Finally, if the offender concealed or destroyed records related to the fraud or the disbursement of the proceeds of the fraud, this is seen as an aggravating circumstance. This recognizes that attempts to cover up evidence of fraudulent activity can undermine efforts to hold perpetrators accountable and recover lost funds. When individuals take steps to deliberately hide their wrongdoing, this should be taken into account when determining their sentence. Overall, section 380.1(1) of the Criminal Code of Canada provides a framework for considering the severity of fraud-related offences and the impact they can have on individuals and society. By taking into account these aggravating circumstances, courts can better ensure that individuals who commit fraud are held accountable for their actions and that appropriate sentences are imposed.

STRATEGY

Dealing with section 380.1(1) of the Criminal Code of Canada can be challenging and requires strategic considerations. This section mandates that the court must consider certain aggravating circumstances while imposing a sentence for offenses such as fraud, which includes the magnitude of the fraud, its impact on the Canadian economy, the number of victims, the age, health, and financial situation of victims, the offender's high regard in the community, and the concealment or destruction of records related to the fraud. Any lawyer who is representing a defendant in a fraud case must be aware of this section's provisions and implications. The first strategic consideration is to assess whether any of the aggravating factors listed in the legislation apply to the case. If any of the aggravating circumstances exist, the lawyer must prepare a defense that can mitigate the sentence's impact. In this case, the defense must establish a convincing argument that the aggravating factors are not applicable or their effect is not significant. Moreover, the defense must be supported by corroborating evidence. Another important strategic consideration is to provide a compelling argument on behalf of the defendant. The lawyer must emphasize the defendant's positive attributes, including any contributions they have made to the community, their previous good behavior, and their cooperation with the authorities. The lawyer must also address the defendant's remorse and willingness to make restitution. A third strategic consideration for a defendant is to cooperate with the authorities. Cooperation can be an essential tool in persuading the prosecutor to negotiate a plea deal with a lighter sentence. If a defendant offers information or evidence that assists in the prosecution of accomplices or co-conspirators, it can strengthen their case significantly. Moreover, cooperation can demonstrate a defendant's contrition and willingness to make amends, which can be a persuasive factor in sentencing. Another strategy that could be employed is to negotiate with the prosecutor. In some cases, a defense lawyer can negotiate a plea deal with a reduced sentence by admitting guilt or pleading no contest. A plea deal can be beneficial for all parties involved, and it provides an opportunity for defendants to avoid a conviction or a trial that might result in a severe sentence. In conclusion, section 380.1(1) of the Criminal Code of Canada requires strategic considerations for lawyers dealing with fraud cases. Lawyers must carefully assess the applicability of the aggravating factors and develop a defense strategy that can mitigate their impact. Cooperation, negotiation, and emphasizing the defendant's positive attributes can be effective strategies in securing a favorable sentence. It is crucial to work with an experienced and knowledgeable defense attorney to maximize the chances of success.