How do I get fraud charges dropped?
Fraud charges are laid when a person is suspected of using deceit, falsehood or other dishonest means to deprive someone, a company or the public of money. Depending on the monetary value of the crime, an accused may be charged with fraud under $5,000 or fraud over $5,000. If you find yourself in that situation, seek out legal advice or you risk being saddled with a criminal record or even jail time.
Restitution is important
As with any criminal charge, the onus is on the Crown to prove beyond a reasonable doubt that the accused is guilty. If someone has a clean criminal record and the amount involved is under $5,000, there will probably be grounds to argue for a discharge or a peace bond, depending on the circumstances.
Restitution, or repaying the money fraudulently obtained, is always a good first step. The court wants to see that the victim is financially returned to where they would have been if the fraud had never occurred.
Conditional sentences are sometimes given for fraud
According to a news story, a man described as a “knave and convicted fraudster” by a registrar in bankruptcy and insolvency was handed an 18-month conditional sentence followed by 12 months’ probation after he paid $40,000 in restitution to his former employer. The man pleaded guilty to 17 counts of fraud, forgery and uttering forged documents. Conditional sentences allow offenders to serve their time in the community, under strict conditions, rather than going to jail.
He also had to turn over all outstanding income and expense information, surrender all remaining property and provide information regarding relevant tax returns, the story stated.
According to another news story, a Toronto man who scammed a Niagara Falls hotel out of more than $7,000 was given a conditional discharge followed by two years probation. The man stayed at the hotel for 19 days and incurred more than $7,200 in charges including use of the room, retail purchases, parking, room service and spa treatments.
His lawyer sought an absolute discharge, the story stated, noting her client had lost his restaurant and home due to drug addiction and was essentially homeless at the time of the offence, though he was able to pay $2,000 in restitution.
“Well, go to someplace that’s a little less expensive … like a shelter,” the judge replied, according to the story.
His lawyer had advocated for an absolute discharge would have meant the accused would not have a criminal record.
“How could that possibly be in the public’s interest when he hasn’t paid up everything he owes yet?” the judge asked, according to the story. “If the manager of the … hotel was listening to this court proceeding I think they’d be shocked that somebody who comes there under a false name, using all the amenities including the spa, gets away with paying only $2,000.”
Addictions often lead to fraud
Many frauds are carried out by people with gambling, drug or alcohol addictions. They need money to feed their habits and a small fraud may seem like a good way to obtain those funds.
I handled a case where a person had a serious gambling problem and had racked up equally serious debts. He feared for his family’s safety since he was being threatened by the people he owed money to, so he took funds from his employer to pay off the debt.
Typically, when people are so desperate that they take money from their employer, they don’t do it in a very covert way, making the fraud easy to spot. In this case, the man was responsible for making deposits for his company, and it quickly became clear that the amount leaving the store was greater than the amount being deposited.
When his case went to court, I told the judge he was now in counselling to help him deal with his gambling addiction. In order to fully repay the money he had stolen, my client agreed to sell his car, showing the court he was serious about restitution. Acknowledging that commitment, the judge granted him an absolute discharge.
I had another case where a woman defrauded her employer of over $30,000. She had addiction issues but committed herself to completing an extensive drug rehabilitation program, after which she paid back the entire sum she had stolen. The court granted her a conditional discharge.
I have counselled other clients who refused to make sacrifices to pay back the money they stole, which certainly does not help them when asking the court for a discharge or peace bond.
Intention is important
When prosecuting a fraud case, the Crown will start from the position of seeking a criminal record or time in jail for the accused, depending on the seriousness of the crime.
If it is a minor fraud, restitution should help lower the sentence, if a dismissal of the charges is not granted. But sometimes the accused cannot repay the money despite their best intentions, especially if a large amount of money is involved.
In all cases, the court will want to know how the fraudulently obtained money was used. If someone was supporting family members but not really profiting from it themselves, the court will view that more favourably than if it was used to buy a second home or a sports car.
Stand-alone restitution orders
If there is no restitution, the court can issue a stand-alone restitution order or make it part of a probation order or conditional sentence.
According to a Department of Justice document, the Canadian Victims Bill of Rights gives every victim the right to have a court consider making a restitution order when deciding the offender’s sentence. If the offender doesn’t pay the restitution order, a victim also has the right to register the restitution order with a civil court and seek to enforce it as a judgment through that court.
According to the DOJ, restitution can cover a victim’s financial losses related to:
- damaged or lost property due to the crime;
- bodily injury or psychological harm due to the crime including loss of income or support;
- reasonable expenses for temporary housing, moving, food, childcare and transportation due to a spouse, common-law partner, child or other person moving out of the offender’s household because of harm or threat of harm from the offender;
- re-establishing a victim’s identity or correcting credit history or credit rating because of identity theft or fraud;
- costs that victims of non-consensual publication of an intimate image had to pay to have that image removed from the Internet or other digital networks.
Restitution cannot be ordered for pain and suffering, emotional distress, or other types of damages that can only be assessed in civil courts.
If an offender fails to pay a restitution order by the day specified in the court order or if the offender does not comply with a payment plan, a victim can file the order in the civil court and use civil enforcement methods to collect the unpaid amount. A stand-alone restitution order has no time limit for repayment and may be registered as a civil judgment, which in turn could be used to garnish wages and seize property.
Fraud in the age of COVID
According to the Anti-Fraud Centre there were almost 47,389 cases of fraud reported in 2019, worth a total of $102.5 million. In 2020, between March 6 and Sept. 30, there were 3,922 victims of COVID-19 fraud, with $6.2 million lost.
According to a CBC story, one of these scams is a text message from a number claiming to be the Red Cross, offering free face masks. The message contains a link to a fake Red Cross website where the person is asked to make a payment, either for a donation or to pay for the delivery of the mask.
Another common COVID fraud is to tell people they have tested positive for the coronavirus, the story states. They are then urged to provide a credit card number so that medication can be sent to them.
According to a story in IT World Canada, the Canadian Centre for Cyber Security (CCCS) has taken down more than 1,500 COVID-themed fraudulent sites or email addresses aimed at Canadians.
A spokesperson for the centre said the site included ones that spoofed the Public Health Agency of Canada, Canada Revenue Agency and Canada Border Services Agency.
“This is a worldwide effort and it’s a very automated process,” the spokesperson said, noting the frauds range from signing people up for supposed federal emergency benefits programs to offers to sell personal protective gear such as masks.
Experienced counsel makes the difference
Those charged with fraud should seek legal advice as soon as possible. If you are convicted that could mean jail time and a criminal record that will impact your reputation and ability to find other work. Don’t take that chance. Call me for a free consultation in either official language. I will be the only person you speak to at my firm and I will fight for your best possible outcome