What is the sentence for fraud?
After someone has been found guilty of fraud, the court is left to determine an appropriate sentence. While the Criminal Code spells out maximums – two years less a day and a $5,000 fine for fraud below $5,000 and a maximum of 14 years in prison for above $5,000 – there are many other variables the court weighs before imposing a sentence.
For example, the court may increase a sentence to account for aggravating factors relating to the offender or the offence, or decrease it if there are mitigating factors. An aggravating factor would be the offender's criminal record, while a mitigating factor could include the fact that the accused is a first-time offender.
In 2015, the Supreme Court of Canada offered this guidance about finding an appropriate sentence for any crime.
“The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed … there is no such thing as a uniform sentence for a particular crime … sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.”
Section 718 states the sentence must “have one or more of the following objectives:
- to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
- to deter the offender and other persons from committing offences;
- to separate offenders from society, where necessary;
- to assist in rehabilitating offenders;
- to provide reparations for harm done to victims or to the community; and
- to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Section 718.2 is much lengthier, but to summarize, it calls for the court to take into account any aggravating or mitigating circumstances. With fraud, a key aggravating factor is if the defendant abused a position of trust or authority in relation to the victim.
Another relevant aggravating circumstance with fraud is “if the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.”
In each case, the Code stipulates that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.”
According to the Department of Justice (DoJ), “The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society.”
“The criminal law should provide sanctions for criminal conduct that are related to the gravity of the offence and the degree of responsibility of the offender, and that reflect the need for protection of the public against further offences by the offender and for adequate deterrence against similar offences by others,” the DoJ states.
Types of sentences
If someone is charged with fraud under $5,000, the Crown can proceed by indictment and seek the maximum penalty of two years in federal prison followed by three years of probation. If the Crown instead decides to treat the fraud charge as a summary conviction, the maximum penalty is two years less a day in a provincial jail and a $5,000 fine.
A conviction for fraud over $5,000 is automatically considered an indictable offence with a maximum sentence of 14 years.
The DoJ lists the various types of sentences that can be handed down in criminal matters, including fraud. The court can impose any one of these or a combination of penalties:
Absolute or conditional discharge This may be given with minor frauds after a finding of guilt, and no conviction will be registered. With a conditional discharge, the conditions may include avoiding alcohol or drugs, or completing treatment or counselling programs.
Suspended sentence and probation The court may choose to suspend imposing a sentence and release the offender on probation for a specified length of time. A person on probation remains out of custody but is supervised by a probation officer and must follow specified conditions.
A fine With fraud, a fine is usually combined with another penalty, such as imprisonment or probation. If the offender is in default of a fine, the provincial or federal government may refuse to issue, renew, or may suspend, a licence or a permit until the fine is paid, with jail time the last resort.
Conditional sentence If a sentence is less than two years' imprisonment, the court may order that the sentence be served in the community, with certain conditions, instead of jail. The court must be confident that if the offender serves the sentence in the community, they will not endanger the safety of the public.
Imprisonment An offender who is sentenced to less than two years serves the sentence in a provincial correctional institution. An offender sentenced to two years or more usually serves the sentence in a federal penitentiary.
Intermittent sentence When the court imposes a sentence of 90 days or less, the court may allow that sentence to be served intermittently, or in blocks of time such as on weekends. That allows the offender to work, go to school or care for a child, for example. An intermittent sentence must be accompanied by a probation order, which governs the offender's conduct while he or she is not in jail.
Restitution With fraud, the court wants to see the money returned to the victim.The court can impose restitution as a stand-alone order along with another sentence, as one of the conditions of a conditional sentence or as a condition of probation.
An important change with conditional sentences
Until recently, anyone sentenced for a crime that carries a jail term of 14 years or more was not eligible for a conditional jail sentence or house arrest. That changed in 2020, when the Ontario Court of Appeal decision struck down that provision in a case involving an indigenous woman found with a substantial amount of cocaine in her suitcase at an airport in Toronto.
The sentencing judge noted she was “an intergenerational survivor of the government’s residential school effort to eradicate the cultural heritage of her people.” However, he rejected her application for a conditional sentence and imposed a custodial sentence.
Her lawyer appealed, arguing the sections of the Code that make conditional sentences unavailable for indictable offences where the maximum penalty is 14 years or more are arbitrary and overbroad. The appeal court agreed and gave her a conditional sentence to be served at home, citing a Supreme Court of Canada decision that offered these views on role sentencing judges.
“It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system … what can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.”
The court’s decision to strike down the rule that a conditional sentence is not an option for a crime that carries a jail term of 14 years or more is applicable to other charges, including fraud, and I will be seeking conditional sentences for clients when it is appropriate.
The cost of a criminal record
If you are convicted of fraud and not given a discharge you will have a criminal record registered with a database administered by the RCMP. Your record will be visible to all Canadian police forces, as well as U.S. law enforcement services.
This record can have a significant impact on your life. If you apply for a job where the prospective employer does a background check, they will likely not hire someone with a fraud conviction.
When dealing with family law or child custody issues, a judge can take into consideration the criminal record as evidence of your character. Even doing volunteer work may be out of the question, as most agencies require a criminal record check. If you have a criminal record you will have to disclose and provide to the agency your criminal record.
What about previous convictions?
Generally speaking, if someone has a criminal record and they commit another offence, they will be sentenced more severely than someone with a clean record. While an accused may have received a light sentence previously, a second conviction will come with increased penalties that can include jail.
As a judgment from the Supreme Court of Newfoundland and Labrador states: “A criminal record surely indicates diminished prospects for rehabilitation. Furthermore, a criminal record, and particularly where the offences are similar, is the omen that immediately alerts the sentencing judge to the reality that the offender has become a serious threat to the community. How great the risk of course, depends on the nature of the offences and the circumstances.”
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