What are the best defences if I am charged with a white-collar crime?
Being charged with a white-collar crime can be devastating for those in the corporate world. Their reputation in business and private circles is in peril, plus they could be looking at incarceration and stiff financial penalties if convicted. Experienced legal counsel can help those charged obtain the best judgment.
When I have a client who is facing charges such as fraud, embezzlement or others considered a white-collar crime, the first thing I do is sit down with them and review all the evidence the police must release through disclosure, as well as any documents they have that support their side in the case. This review has to be thorough and time-consuming, but it will allow us to help us decide on the strongest defence possible.
Types of defences
Negotiated resolution: Complex frauds often result in numerous charges being laid, sometimes against multiple people or companies. In those cases, a negotiated resolution or plea may be possible, where a person admits guilt to some charges in exchange for others to be dropped, especially those that will lead to jail time.
Challenge the evidence: The evidence to prove white-collar crime cases often involves documentation from many sources, which may lead to evidentiary and legal issues. By casting doubt on the prosecution’s arguments and by finding simple errors in their evidence, legal counsel can raise doubts to the court about the Crown’s evidence.
A breach of Charter rights: Every Canadian is granted protections enshrined in the Canadian Charter of Rights and Freedoms. In their investigations leading up to the trial, police may have violated a suspect’s right when gathering documents such as bank account information or corporate records. If defence counsel can show the court a violation occurred, that evidence may be excluded from trial, leading to a lesser sentence or perhaps even a stay of the charges.
A right to timely justice: Section 11(b) of the Canadian Charter of Rights and Freedoms states that “any person charged with an offence has the right to be tried within a reasonable time.” A 2016 Supreme Court of Canada (SCC) case determined those limits should be 18 months after charges are laid for a provincial court and 30 months for superior courts.
Anyone charged with a crime is presumed innocent and deserve to have their case heard in a timely fashion. These deadlines also benefit society and victims, as they also want matters resolved in a reasonable amount of time.
Show a lack of intent: Many white-collar crimes, such as fraud and embezzlement, require the Crown to prove there was purposeful intent behind the allegedly criminal action. If other people or organizations are involved, it may be possible for defence counsel to show that their client was unaware that something illegal was occurring.
A 1993 SCC decision provides this definition of what is needed to prove intent in a fraud case: “The requirement of intentional fraudulent action excludes mere negligent misrepresentation. It also excludes improvident business conduct or conduct which is sharp in the sense of taking advantage of a business opportunity to the detriment of someone less astute. The accused must intentionally deceive, lie or commit some other fraudulent act for the offence to be established. Neither a negligent misstatement, nor a sharp business practice, will suffice, because in neither case will the required intent to deprive by fraudulent means be present. A statement made carelessly, even if it is untrue, will not amount to an intentional falsehood, subjectively appreciated. Nor will any seizing of a business opportunity which is not motivated by a person's subjective intent to deprive by cheating or misleading others amount to an instance of fraud.”
Entrapment: When police suspect individuals or an organization are committing criminal actions they may set up a sting operation to lure individuals into committing a crime. If defence counsel can prove police improperly induced the criminal activity the defence of entrapment can be raised, though it is more often used in the sentencing process to reduce the penalty.
A 1992 Manitoba provincial court judgment notes that “entrapment is not a defence to a charge per se … in the traditional sense of that term. A successful defence leads to an acquittal on the charge, a determination that the offence has not been committed by the accused. Here, axiomatically, the crime from a physical point of view at least has been committed ... the successful application of the concept of entrapment leads to a stay of prosecution, the court withholding its processes from the prosecution on the basis that such would bring the administration of justice into disrepute.”
Incapacity: If the accused did not understand the nature of their alleged criminal act, perhaps due to a physical or mental incapacity, this defence may be possible.
Cracking down on white-collar crime
The Ontario government is serious about prosecuting white-collar crime. The Globe & Mail reported the province has set up a Serious Fraud Office (SFO), dedicated “to financial crimes that are too sprawling for any one municipal police force to handle.”
One of the primary goals of the SFO is to bridge gaps between investigators and prosecutors, the story states, to “prevent cases from languishing and forcing judges to throw them out because of unconstitutional court delays.”
The story adds that during the past few decades, “a number of high-profile white-collar cases in Ontario have concluded in acquittals. In some cases of well-established deception in the capital markets, no individuals have been charged criminally at all.”
Finding the right lawyer
A person charged with a white-collar crime may feel their world has been turned upside down. If you are in that situation be calm and take the time to screen several criminal defence lawyers. Tell them what you know about the evidence police may have against you, and get a sense of how much experience they have in dealing with cases such as yours.
Keep in mind there are many types of lawyers. Those who primarily draft wills or help people incorporate businesses are performing valuable duties, but their skill set is not the same as someone responsible for mounting a criminal defence. Your reputation and possibly your freedom is at stake, so go with an experienced criminal lawyer.
I have successfully represented numerous clients charged with white-collar crimes. This experience has given me a deep understanding of how complex these cases can be while honing my skills as a tough negotiator and an aggressive advocate.
This article details several client cases that demonstrate the advantages of working with a criminal lawyer who has a proven track record.
While there’s no magic formula for selecting the right lawyer, the best advice I can give is to listen to your gut. Many of the clients who come to me feel deep shame and embarrassment, knowing that their actions may amount to a crime. As their defence counsel, I don’t pass moral judgment on them personally, as I instead focus on the facts of their case, dissecting that evidence to build the best possible defence.
Being charged with a white-collar crime can be a life-altering experience, so it’s essential to feel comfortable with the person who will be defending your case in court.
Experienced counsel makes a difference
In every criminal case, it is the responsibility of the Crown to prove guilt beyond a reasonable doubt. With the white-collar crime of fraud, the Crown must demonstrate that the accused “by deceit, falsehood or other fraudulent means” defrauded a person or persons. Computer records and financial statements often form the foundation of the Crown’s case in many white-collar crime cases.
Dealing with the police and the criminal justice system in white-collar crime cases requires a skilled and experienced legal advocate. As your counsel, I will spare no effort to present your defence to the court in the best light possible. If the police have called you for an interview or questioning, don’t give a statement. First, call me for a free consultation.