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Fraud Lawyer In Toronto

Mississauga, Brampton and Newmarket Fraud Lawyer

Commonly Asked Questions

1. What is fraud?

2. What is the sentence for fraud?

3. What is a Ponzi scheme?

4. Is fraud of an employer more serious?

5. What is a breach of trust fraud?

6. What is aiding and abetting?

7. What happens if no benefit was received from the fraud?

8. What is a Restitution Order?

9. What is a Forfeiture Order or a Fine in Lieu of Forfeiture?

10. What are my Charter rights?

11. Can the Charter help my defence?

What is Fraud?

Fraud and financial offences, such as Ponzi schemes, have become a major focus of the police. Section 380 of the Criminal Code of Canada sets out the offence of fraud consists of "dishonest deprivation". Fraud occurs when anyone, by deceit, falsehood or fraudulent means, whether or not it amounts to false pretences, causes deprivation of any property, money, valuable security or any service, or the risk of prejudice to the economic interest of the complainant who is the object of the dishonest act. If there was a risk of prejudice to the economic interest of the complainant, it is not a defence that no economic benefit was received from the fraud.

If you are under investigation for or have been charged with fraud, such as employee benefits fraud, insurance fraud, employer fraud or bank fraud, it is critical that you find a defence lawyer with experience handling complex cases. The penalties for conviction are severe, so your choice of lawyer is critical.

  • Information regarding the offences of identity fraud and identity theft is available here.
  • Information regarding the offences of forgery and false pretences is available here.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your fraud case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. You can reach me by phone at 416-651-2299 or toll free at 1-888-399-3164 or by e-mail.

What is the Sentence for Fraud?

In general the sentence for fraud may range from a maximum of 14 years in prison for fraud over $5,000.00 to a maximum of 2 years less one day in jail if the charge is proceeded with summarily.

As a result of its "tough on crime" agenda, the government of Canada, in November of 2011, enhanced the sentencing provisions of the Criminal Code of Canada with respect to frauds.

If you are facing a charge of fraud over $5,000.00, it is very important that you have skilled legal counsel to help avoid serious criminal penalties. The offence of fraud over $5,000.00 has been removed as an offence for which a community based sentence may be available. What this means is that there is no longer eligibility for a community-based sentence such as a conditional sentence of house arrest.

I have more than 35 years of experience defending clients against allegations of fraud in Ontario. I understand what is at stake for my clients and provide them with the thorough and intelligent defence needed to protect their rights and freedom.

Is there a Mandatory Minimum Sentence for Fraud?

As of November 2011, anyone convicted of a fraud involving over $1 million faces a mandatory minimum sentence of two years in federal prison pursuant to section 380(1.1). There is no eligibility for house arrest. The harsh consequences of a conviction for this kind of activity demand the attention of a skilled Toronto defence lawyer.

What are the Aggravating Sentencing Circumstances for Fraud?

In addition, pursuant to subsection 380.1(1), a court that imposes a sentence for fraud must consider the following aggravating circumstances:

  • (a) the magnitude, complexity, duration and degree of planning involved;
  • (b) if the offence had the potential to adversely affect the stability of the Canadian economy, financial system, financial markets or investor confidence;
  • (c) if the offence involved a large number of victims;
  • (c.1) if the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;
  • (d) if the offender took advantage of the high regard in which the offender was held in the community;
  • (e) if the offender did not comply with a licensing requirement or professional standard that would normally apply to the activity that resulted in the fraud;
  • (f) if the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

What Are The Other Aggravating Circumstances Regarding Sentence?

Section 718.2 of the Criminal Code of Canada requires a Court that is imposing a sentence to take into consideration certain principles including the principle set out in subsection 718.2(a) that states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." There are various circumstances that are deemed to be "aggravating circumstances". One of those aggravating circumstances is set out in subsection 718.2(a)(iii) which states that an aggravating circumstance is "evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim". In other words, it is an aggravating factor for purposes of sentencing that the accused was in a position of trust to the complainant. A relationship of trust may exist, for example, between employers and employees or between relatives or even friends.

What Cannot Be Considered as Mitigating?

A court imposing a sentence for fraud is prohibited from considering as a mitigating circumstance the offender's employment, employment skills, or status or reputation in the community if those circumstances were relevant to, contributed to or were used in the commission of the fraud.

What is a Ponzi Scheme?

A Ponzi scheme is a name given to a fraudulent endeavour that involves convincing "investors" to provide money in exchange for extremely high rates of return. These "investors" are promised extremely high rates of return within extremely short periods of time. The early payments of "investment interest" are made by the operator of the Ponzi scheme using the "investor's" own money. In other words, the "investor" is collecting what the "investor" thinks is investment profit or interest but, in reality, the "investor" is simply receiving back a portion of his or her own initial payment. As the Ponzi scheme progresses, the person running the Ponzi scheme uses money collected from new "investors" to pay early "investors". Typically the money collected is not invested in anything. A portion of the money is simply used to keep "investors" thinking that their money is at work earning them high interest.

A number of Ponzi schemes have been exposed throughout Canada in recent years. If you are accused of operating a Ponzi scheme, you know that you are facing some of the harshest penalties available for financial crimes. I have the knowledge and the skill to properly represent you. I will immediately begin investigating all the circumstances, bringing in forensic accountants and other experts, when necessary, to create a strong defence on your behalf.

If you are under investigation for or have been charged with fraud, or a large volume theft, it is critical that you find a defence lawyer with experience handling complex cases. The penalties for conviction are severe, so your choice of lawyer is critical.

Employee Benefits and Insurance Benefits Fraud

If you are being questioned at work or by an insurance company representative regarding irregularities at your place of work or with your claim for benefits, you require legal advice immediately. You should assume that your answers will be used against you in court. Your answers are not confidential. Information regarding your legal rights can be found here.

I have been in legal practice since 1985. I have extensive knowledge and experience in dealing with such investigations. I will be able to speak to investigators without incriminating you. You will not be able to do the same on your own.

What are Some of the Possible Non-Custodial Penalties?

A conviction for a fraud offence may result in a Restitution Order, a Forfeiture Order or a Fine In Lieu of Forfeiture resulting in further prison time if the Fine in Lieu of Forfeiture is not paid within the time period specified by the Court.

What is a Restitution Order?

A Restitution Order is a Court order requiring the payment of compensation to the person who was defrauded. A Restitution Order, in a fraud case, survives bankruptcy. The Restitution Order will remain in place until it is paid and may be enforced in the same manner as a civil judgment.

That means that if restitution is ordered, it must be paid and cannot be avoided for the rest of your life. Having the right representation on your side is critical.

What is a Forfeiture Order?

A Forfeiture Order is a Court order requiring the forfeiture of property or a sum of money to the Crown.

Subsection 462.37(1) and subsection 462.37(2) provide as follows:

  • 462.37(1) Subject to this section and sections 462.39 to 462.41, if an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on or discharging the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime obtained through the commission of the designated offence, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
  • 462.37(2) If the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) was obtained through the commission of the designated offence of which the offender is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.

What is a Fine in Lieu of Forfeiture?

A Fine in Lieu of Forfeiture is a Court order requiring a person against whom a Forfeiture Order cannot be made, because, for example, the money that was the subject of the fraud cannot be found or is not available, to a pay a fine to the Crown equivalent to the amount that was defrauded. If the fine is not paid within a specified period of time after release from custody, the convicted person must serve a further period of time in jail. Both a Restitution Order and a Fine in Lieu of Forfeiture may be imposed by the Court. Usually, this is accompanied by a stipulation that any payments made pursuant to a Fine in Lieu of Forfeiture is credited to the Restitution Order made by the Court.

Subsection 462.37(3) and subsection 462.37(4) provide as follows:

  • 462.37(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property
    • (a) cannot, on the exercise of due diligence, be located;
    • (b) has been transferred to a third party;
    • (c) is located outside Canada;
    • (d) has been substantially diminished in value or rendered worthless; or
    • (e) has been commingled with other property that cannot be divided without difficulty.
  • 462.37(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall
  • (a) impose, in default of payment of that fine, a term of imprisonment
    • (i) not exceeding six months, where the amount of the fine does not exceed ten thousand dollars,
    • (ii) of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars,
    • (iii) of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars,
    • (iv) of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars,
    • (v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars,
    • (vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or
    • (vii) of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars; and
  • (b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.

Fraud Covers a Wide Variety of Illegal Activity

I defend clients against all types of fraud charges, including:

  • Ponzi schemes
  • Employee benefits fraud
  • Employer fraud
  • Insurance benefits fraud
  • Bank fraud
  • Contract fraud
  • Cheque fraud
  • Credit card fraud

I have built my practice on a foundation of thorough preparation. I create legal strategies to challenge the prosecution's case based on the unique circumstances and evidence in your case.

Pre-Trial Charter Applications

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown's remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Electing to Have a Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as "High Court".

The completion of a preliminary inquiry is not mandatory. The Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your fraud case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. You can reach me by phone at 416-651-2299 or toll free at 1-888-399-3164 or by e-mail.

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