What’s the best defence in a fraud case?
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What’s the best defence in a fraud case?
If the police want to interview you in connection with a fraud investigation, it’s important to seek legal counsel as soon as possible. Fraud is a serious crime with life-altering consequences for those who are convicted. Before you attend a police interview, get some advice from an experienced criminal defence lawyer. Any statement you make to police can be used against you by the prosecution in court. As your legal advocate in a criminal proceeding, a lawyer is a safeguard against attacks on your freedom, reputation and rights.
Fraud is a broad category of offenses that can range from cashing a cheque that belongs to someone else or overcharging for a service to stealing from an employer. The consequences of a fraud conviction — fraud under $5,000 or fraud over $5,000 –– can have a devastating effect on a person’s life. You will likely face jail time (the maximum penalty is 14 years), fines and a criminal record that can carry a heavy social stigma. A criminal conviction will severely limit your future employment opportunities and your freedom to travel around the world.
What differentiates fraud from theft is the degree of dishonestly or misrepresentation involved in the crime. To be convicted of fraud requires proof that the accused knowingly did something wrong (for example, intentionally overcharging a client for service), and was aware that doing this could cause another person to lose something.
In a recent case, a Manitoba woman was sentenced to 15 months in jail and ordered to pay more than $130,000 in restitution after she pled guilty to fraud over $5,000 for stealing from her employer to feed a gambling addiction.
“Determining a fit and appropriate sentence for the offence of fraud over $5,000 where there has been a breach of trust is an exercise that must take into account the unique features of this crime,” the judge wrote in his decision.
Although the woman had tremendous support from the community, including 12 reference letters filed to the court on her behalf, the judge pointed to s. 380.1 of the Criminal Code, which requires “that the Court not consider these factors as mitigating” when a person takes advantage of their high regard in the community to commit the offence.
Finding a lawyer –– what to look for
When you’re in the middle of one of the most stressful experiences of your life, how do you determine which lawyer is the best fit for you? To begin, you should interview several criminal defence lawyers and tell them as much as you know about the allegations and any evidence the police may have. Ask them about their experience handling these types of cases and the results of the cases they’ve worked on.
It’s worth pointing out that defending fraud cases requires a high level of legal expertise. The general practice lawyer who drafted your parents’ will or incorporated your cousin’s small business might be extremely competent, but they won’t have the in-depth knowledge and skills to mount a winning defence in a criminal case. When the stakes are high, it’s critical to work with a lawyer who has a proven track record.
As a criminal defence lawyer who has successfully represented numerous clients charged with fraud, I have a deep understanding of the complexity of such matters. To best serve my client’s interests, I often need to be both a tough negotiator and an aggressive advocate.
I detailed several client cases in a previous article that demonstrate the advantages of working with a knowledgeable criminal lawyer who has the experience and a solid track record in defending fraud charges.
There’s no magic formula for selecting the best lawyer. A gut check based on your level of comfort is often the best indicator of “fit.” Many of the clients I work with feel deep shame and embarrassment if they have played a part in a crime. It’s important to work with a lawyer who focuses on the facts of your case and avoids making any moral judgements. Being charged with fraud is a serious matter and can take months to resolve, so it’s essential to feel a rapport with the person who will be defending you.
Your best chance of defeating a fraud charge is by working with a lawyer who understands the intricacies of the law and how to negotiate with the Crown to minimize the impact of an offence.
Developing your legal defence
The good news is that it’s possible to beat fraud charges or negotiate with the Crown prosecutor to reduce the charges and minimize their impact on you. Unlike how criminal cases are portrayed on television, real-life investigations are rarely cut-and-dried. As a legal advocate, my job is to understand every aspect of the case to build a solid defence to the charges or a plea strategy.
Every case is different, and how to defend it will depend on the circumstances. I start by asking my client for an account of what happened. I want to understand what happened and the reasons behind the incident. Perhaps addiction or a crushing debt led the person to think of fraud as a solution to the problem. Next, I make a detailed review of the evidence, including police reports, witness statements, CCTV footage and any documents in the Crown’s disclosure that suggest a fraud has occurred.
To successfully prove a fraud-related charge, the Crown must demonstrate beyond a reasonable doubt that the accused “by deceit, falsehood or other fraudulent means” defrauded a person or persons. In cases involving defrauding an employer, there are often many documents and computer records that form the basis of the Crown’s case. As a defence lawyer, my job is to analyze all of them carefully to determine if there are any holes in the Crown’s proof.
Some of the potential defences in fraud cases include:
Lack of fraudulent intent: This defence could be mounted in a case involving the sale of goods that the seller believed were genuine, but were, in fact, fake or knock-offs. For example, if you sold what you honestly thought was an Hermès Birkin bag that was later discovered as a fake, it could be argued that you did not have the fraudulent intent required to be guilty of the offence. For this defence to be successful, it would be necessary to prove that you were not reckless or wilfully blind to the fact the item wasn’t the genuine brand.
No risk of loss: An essential element of a fraud conviction is proving that the victim suffered a loss or was at risk of suffering a loss due to the deceitful actions of the accused. If the accused person can prove that the victim did not experience a loss and had no risk of experiencing a loss, there will be no grounds for a guilty verdict.
Breach of Charter rights: In fraud investigations, police sometimes either deliberately or inadvertently violate a person’s rights under the Canadian Charter of Rights and Freedoms. For instance, if the police conducted an unreasonable search and seizure to obtain evidence, your lawyer will move to exclude any evidence gathered in that search. If that motion is successful, the Crown’s case against you may no longer be viable.
Defence is built on the facts of the case
Knowing how to mount a successful defence in fraud-related charges is always case-dependent. There is no cookie-cutter approach to defending these types of charges, as they will always depend on the specific facts of the case.
In a recent case, my client was accused of defrauding his employer after money went missing from the safe. He worked in surveillance at a grocery store, and his partner was also employed at the store. The employer called him into a meeting with several managers and told him he would need to admit to the crime in order for his partner to keep her job.
Under duress, and to ensure there would be a least one person in their home with an income, my client admitted he stole the money and signed an admission letter outlining the details, which was later provided to the police.
When I met with my client, he told me that he hadn’t taken the money from the safe. His only reason for admitting to it was to ensure his partner kept her job, as the employer had promised. In fact, both were fired.
His verbal admission, as well as the signed letter, were damning pieces of evidence against him. My defence strategy was to ensure the admission was excluded from evidence, given the tactics the employer used to extract it. I was successful in doing so, and my client was acquitted of the charges.
False confessions are more common than people think. Everyone has a breaking point. In stressful decision-making situations such as an interrogation, people will sometimes do whatever is necessary to remove themselves from the stressor, according to Saul Kassin, a psychology professor and pioneer in the study of false confessions.
Choose experienced legal counsel
Dealing with the police and the criminal justice system in cases involving fraud allegations is a serious matter that requires a skilled and experienced legal advocate. I have helped numerous clients avoid jail time stemming from fraud charges. If the police have called you for an interview or questioning, don’t give a statement. First, call me for a free consultation.
