The police want to interview me about a fraud. What should I do?
When the police request to interview a suspect in connection to a fraud investigation, very often, a person’s first impulse is to unburden themselves, admit to their role in the crime and accept the consequences.
Whether it’s cashing another person’s cheque, intentionally overcharging for a service, elder fraud or stealing from an employer, I have found the vast majority of clients feel a deep sense of remorse and humiliation about what they’ve done. Many are struggling with severe financial distress or an addiction that has compelled them to act against their better judgement.
The urge to confess is understandable, but I caution clients against doing that with the police for two key reasons. First, it’s important for anyone facing fraud charges to realize that when they speak to police, anything they say during that conversation can be used against them in court. Second, in the early part of a criminal investigation, police don’t have all the facts. During a stressful police interview, a suspect may mistakenly confess to something that isn’t true. In general, my advice to clients is to say nothing during a police interview because, at this point, we don’t have all the facts. It is within a suspect’s Charter rights to remain silent.
For example, in a recent case, my client was charged with fraud over $5,000 after he and his associates overcharged an elderly woman for furnace repairs. The police calculated the total amount of the fraud at more than $100,000, but the actual total was closer to $70,000. In their calculations, the police had factored in about $30,000 in cheques that hadn’t actually been processed at the bank. Had my client gone into the police station without seeking my legal guidance, there’s a good chance he may have been responsible for $100,000 in restitution.
Fraud charges and penalties
Being convicted of fraud has serious consequences. In many cases, the courts will impose jail sentences and restitution orders for the victim’s loss. It’s important to seek legal counsel early with a lawyer who has experience defending fraud charges. A skilled legal advocate can help you navigate the complex justice system, negotiate with the Crown to potentially take jail time off the table or convince a judge that jail isn’t in the best interests of an accused person or the public. I have successfully defended clients facing many different types of fraud charges. Each case is unique, and the best defence for your fraud charges depends on the circumstances of the offence and the evidence the Crown prosecutor has against you.
If you’re convicted, you will likely face a jail sentence, and your criminal record will appear in the Canadian Police Information Centre database. Even years later, if a potential employer or other organization conducts a background check, they will see your criminal conviction and sentence. A conviction will also hinder your ability to travel, especially to the United States.
Fraud Under $5,000: This charge will be laid when the value of the fraud is less than $5,000. If the Crown proceeds by indictment, the maximum penalty is two years in a federal prison followed by three years of probation. If the Crown continues by summary conviction, the maximum penalty is two years less a day in a provincial jail and a $5,000 fine.
Fraud over $5,000: If the amount involved is more than $5,000, it is automatically considered an indictable offence. The maximum sentence, in this case, is 14 years. In the case of fraud over $5,000 for a first offence, the penalty could still involve jail time. You can find more information on charges and penalties here.
Timing of an admission is critical
If you have committed a fraud crime and want to express remorse for it, there’s a time and place to do that, but it’s inappropriate to do so during a police interview. As your case proceeds through the legal system, you will have an opportunity to voice regret for your actions. It’s important to avoid doing that before your lawyer has a clear picture of all the evidence, including police and witness statements, video and document evidence, the Crown’s disclosure and your account of what happened.
The same rules apply if your employer suspects you have committed fraud in the workplace and calls you in for a meeting to confront you. Your best course of action is to say nothing until you speak to a lawyer — even if you are intent on admitting the wrongdoing and apologizing for it. In these types of cases, the specific details of the case can make all the difference to your fate.
What the police or an employer accuses you of doing and what you have actually done may, in fact, be two different things. Consider a scenario where the manager of a clothing store accuses an employee of stealing $6,000 worth of designer jeans. The employee did take several pairs of jeans, but the total amount is closer to $2,500. In her haste to make things right, the employee makes a blanket admission of guilt to her manager without pointing out the discrepancy in the amount of stolen goods. The employer files a report to the police, and the employee is charged with fraud over $5,000.
I have worked on cases where my client admitted guilt to their employer or the police, and it can severely hamper my ability to provide them with a solid defence. At that point, I need to demonstrate in court that my client’s admission to an employer or police wasn’t what they thought they were admitting to doing. In these types of cases, determining the exact value of the fraud is important because it will dictate the amount of restitution a person must pay.
For instance, I recently represented a client who was charged with fraud over $5,000 after it was discovered he had been stealing products from his employer’s retail store and selling them on eBay. The employer claimed that the dollar value of the goods was the price they could be sold for in the store, but the actual loss was much lower and based on the purchase cost. Once I determined the true value of the goods, I was able to negotiate a plea deal with the Crown to reduce the charges to fraud under $5,000. My client made restitution to his employer and was able to avoid a jail sentence.
All the stakeholders in the judicial system have a specific job. My role is to defend an accused, and I always want to ensure that what’s being alleged is actually what my client did and that it can be proven. The prosecutor’s responsibility is to confirm every element of the offence beyond a reasonable doubt.
What happens during a police interview?
A fraud investigation usually begins when someone reports a suspected incident to the police. Depending on the circumstances, it can take months for the police to conduct their investigation before laying charges. For example, if a person has been accused of falsifying accounting records, the police will need time to produce appropriate evidence and rule out the fact that it was an accident or an accounting error.
Once the police believe they have proof that a fraud has occurred, an officer will call the accused person into the station and charge them. In most cases, the person is released from custody with charges and court dates in place. At this point, I begin to build a defence of the matter, considering all the relevant information such as the accused’s version of events and the Crown’s evidence against them.
It’s important to keep in mind that officers are trained to extract information from suspects and will use legitimate tactics to encourage a confession. The officer might say something like, “It’s better for you to say you’re sorry now,” or “this is your only chance to admit what you’ve done,” but that’s not true or in the best interests of an accused person. That’s precisely why we have a court process, trial and plea agreements.
What is restitution?
In lay terms, restitution is a way to put the victim of a crime back to their original financial position before the crime occurred.
Whenever possible, I encourage clients to make restitution to the victim as soon as they can –– ideally in advance of the case going before a judge. Often that means the person will need to sell their car and other personal possessions, remortgage their homes or borrow the money. That shows the judge their remorse is genuine, and it will be a necessary step for a person who wants to avoid jail time, although it is no guarantee. When a person isn’t able to make restitution in advance of a legal proceeding, it most likely means they will be facing a jail sentence.
In this scenario, the court will often impose a restitution order, which could involve paying the restitution amount immediately, by a specified day in the order, or as part of a payment plan. Restitution orders can be stand-alone orders imposed as an additional sentence or ordered as a condition of probation or as a condition of a conditional sentence.
In a recent Court of Appeal decision, a judge denied the appeal of an Ontario man who was convicted of several offences involving a sophisticated credit card scheme. At trial, the judge sentenced the man to four years in prison and imposed a restitution order totalling $486,748.26.
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.