What evidence can be used for me / against me with a white-collar crime?
The term white-collar crime is synonymous with a variety of criminal actions committed by business and government professionals. According to information from the U.S. Federal Bureau of Investigation, "these crimes are characterized by deceit, concealment, or violation of trust … the motivation for these crimes is to obtain or avoid losing money, property, or services, or to secure a personal or business advantage.”
Proving that an individual or a firm committed such actions as tax evasion, fraud and money laundering is difficult in many cases as much of the evidence will be in form of detailed paper and electronic records. As defence counsel for those charged with these crimes, part of my work involves carefully examining financial statements and banking information, for information that supports my client’s position or that raises questions about the Crown’s evidence.
In all cases of fraud, the Crown must demonstrate beyond a reasonable doubt that the accused “by deceit, falsehood or other fraudulent means” purposely committed a crime.
RCMP perspective on evidence
According to the RCMP report, Evidence of the Financial Crime: A Police Perspective, “financial or economic crimes are founded in one human trait: greed.”
In every investigation, the Crown is “obligated to provide to the court original documentation or bring to it, the witness who has direct knowledge of the event,” the report states. If the “best evidence” is not available, the Crown must explain why not, with the “court then deciding whether to accept the lesser of the sources of evidence.”
Both direct and circumstantial evidence will be considered, the report states, “under our adversarial system [which] places the burden upon the Crown to prove “beyond a reasonable doubt” that the subject person intentionally committed the alleged crime.”
In addition, all investigations must be “conducted within the requirements of the Canadian Charter of Rights and Freedoms (Charter) and the common law that has evolved during the years since it's repatriation in 1982,” the report states.
The document highlights s. 8 of the Charter, which notes that “everyone has the ‘right to be secure against unreasonable search or seizure.’ Should there be deemed an abuse of one’s rights by an investigating officer or the Crown, the evidence obtained shall be excluded from the trial process. One only exception to their right exists, that is, where it is deemed that exclusion of this evidence would not bring the administration of justice into disrepute. This determination, however, is in the hands of the court.”
Two types of evidence
The report states there are two primary types of evidence in white-collar crime investigations: physical or verbal statements, the latter also known as viva voce.
Since financial crimes are committed before the police work begins, “that automatically places the investigator in a disadvantaged position as they will be required to complete an ‘after-the-fact’ investigation and seizure … it is a rare occasion that a financial crime investigator will be in a position to affect an arrest of the suspect while in the commission of the offence … as most financial crimes investigation is reactive or historic in nature, documents generated prior to or during the commission of that offence are essential and normally make up the majority of evidence.”
According to the report, those documents include bank, accounting and legal records, adding “they may very well prove the circumstances around the alleged offence, but they may not necessarily provide all the essential elements of the criminal charge, eg. The intention of the subject.”
To prove that, police are advised to look at daytimers or mobile phone records, the report states, “as these may be the evidence needed to prove the element that was not readily apparent in the books and records.”
System founded on common law
As far as viva voce evidence, the report notes, “The Canadian criminal justice system is founded on common law. A basic element of this system is the provision of live verbal evidence.”
Even if a witness has given a statement to police, the report continues, “that witness must come to court to give their evidence before the court. The defendant must have an opportunity to cross-examine all witnesses. Failure by the Crown or the state to provide this evidence may lead to an acquittal.”
The report also touches on the limits police are under when gathering evidence, explaining “during the investigative stage police cannot compel a witness to cooperate. They may use reasonable pressure tactics eg., other outstanding criminal charges, etc. but the witness or suspect is not obligated to speak to the investigator.”
It adds that s. 13 of the Charter “protects individuals against self-incrimination.”
Fraud is growing in popularity
Global News reports that a former RCMP investigator says the white-collar crime of fraud is a fast-growing business with Canadian businesses incurring an estimated $3 billion in fraud losses annually.
The investigator says fraud proceeds are easy to hide since evidence of their existence are buried in financial records. To uncover these records, he says time-consuming forensic auditing is required, adding that some large corporations think it is better to just absorb the loss rather than “suffer the embarrassment and reputation risk of having a big fraud disclosed in court.”
The story notes that individuals lost $405 million to fraud from January 2014 to December 2017, with British Columbia, Alberta and Ontario having the most incidents of financial fraud.
“However, because it is estimated over 90 per cent of fraud cases are not reported, it is difficult to determine exactly how much money is being lost to fraudsters,” the story states. “Many cases are not reported because fraud is so difficult to investigate and prosecute.”
Discovering evidence during a pandemic
The COVID-19 pandemic has affected the efficiency of authorities in gathering evidence of white-collar crime, but authorities say they are rising to the challenge. A statement from the Competition Bureau notes that despite the “uncertainty arising from the COVID-19 pandemic … we will continue to protect Canadians through our core enforcement work with a focus on key sectors of the economy, such as digital services, online marketing, financial services and infrastructure, where competitive markets are more important than ever given the current context. We will remain vigilant against potentially harmful anti-competitive activity, mergers and deceptive conduct … enhanced intelligence-gathering methods and injunctions will be at the forefront of our efforts to ensure that Canadian consumers and businesses can thrive in the digital economy.”
The document adds that one of the goals of the bureau in 2021 is to “be a leader in the gathering, processing and analyzing of data and digital evidence.”
White-collar crime transcends borders
The Investigation of White-Collar Crime, produced by the U.S. Department of Justice, illustrates the difficulty with gathering evidence in a white-collar crime. It begins by noting, “The world of white-collar crime enforcement is a broad one, transcending lines of geography, organizations, and subject matter jurisdiction.”
It advises investigators to realize that “the ‘crime’ being investigated will not have a clear beginning and end, in the same way that there is a clear beginning and end to a specific assault, or burglary. White-collar crimes are usually schemes that operate over periods of time. Thus the evidence which is gathered may well be the missing piece of the investigative jigsaw puzzle that the same or some other investigator confronts in the future.”
For any investigation to result in a prosecutable case, the manual states “there must be adequate evidence that the subject of the investigation intended to commit the wrongful acts with which he is charged. This is customarily shown by gathering evidence from witnesses and documents which prove that the subject knew he was involved in wrongful activity or that the circumstances are such that any contrary conclusion lacks credibility.”
The manual then advises investigators to gather evidence about a suspect that shows:
- there could be no legitimate motive for the activities in which he was engaged;
- that he repeatedly engaged in the same or similar activity;
- that he gave conflicting statements or acted to impede the investigation of the offence; and
- he gave statements he clearly knew to be false.
Experienced counsel makes a difference
Those accused of white-collar crimes need someone with experience at their side throughout the investigation and trial. I have helped numerous clients in these cases, securing the best outcome possible. If the police have called you for an interview or questioning, don’t give a statement. First, call me for a free consultation.