Canadian Criminal Sentencing/Offences/Fraud Over $5,000

From Wikibooks, open books for an open world
Jump to: navigation, search
Fraud
s. 380 of the Crim. Code
Election / Plea
Crown Election Hybrid (Under)
Indictable (Over)
Summary Dispositions
Maximum 6 months jail or $5,000 fine (under $5,000)
Indictable Dispositions
Minimum 2 years jail (over $1 mill.)
Maximum 14 years jail (over $5,000 or testamentary)
2 years jail (under $5,000)
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Fraud
380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

...

Minimum punishment
(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.

...

R.S., 1985, c. C-46, s. 380; R.S., 1985, c. 27 (1st Supp.), s. 54; 1994, c. 44, s. 25; 1997, c. 18, s. 26; 2004, c. 3, s. 2; 2011, c. 6, s. 2.

Sentencing — aggravating circumstances
380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in sections 380, 382, 382.1 and 400, it shall consider the following as aggravating circumstances:

(a) the value of the fraud committed exceeded one million dollars;
(b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market;
(c) the offence involved a large number of victims; and
(d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community.

Aggravating circumstance — value of the fraud
(1.1) Without limiting the generality of section 718.2, when a court imposes a sentence for an offence referred to in section 382, 382.1 or 400, it shall also consider as an aggravating circumstance the fact that the value of the fraud committed exceeded one million dollars.

Non-mitigating factors
(2) The court shall not consider as mitigating circumstances 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 offence.

2004, c. 3, s. 3; 2011, c. 6, s. 3.

CCC

Principles[edit]

See also Canadian Criminal Sentencing/Offences/Property Offences

Major instances of fraud over $5,000 require emphasis on general deterrence and denunciation.[1] The same goes for cases involving breach of trust[2] and offences that involve a substantial amount of dishonesty.[3]

The purpose of the general deterrence is to assuage people from engaging in fraud which is often easy to commit and highly profitable. Without sufficient punishment, the temptation of taking the risk of a lesser punishment in exchange for a large sum of money would make it worth while.[4]

Denunciation should adequately reflect the public’s condemnation of this offence and the offender’s conduct.[5]

  1. R v Dobois (2002) 163 CCC (3d) 259 (ONCA) at 42
    R v Bogart, [2002] OJ No. 3039, 2002 CanLII 41073 (ON CA) at 29, 33-36
    R v Wismayer (1997) 115 CCC (3d) 118 (ONCA) at 38
    R. v. Gray (L.V.) et al. 1995 CanLII 18 (ON CA), (1995), 76 O.A.C. 387 at 398-99
    R v Betram [1990] OJ No 2013 at 3 (CA)
  2. R v Howe, [2002] AJ No 1443, 2002 ABCA 277 at 3
    R v Dobois (2002) 163 CCC (3d) 259 (ONCA) at 272
    R v Bogart, [2002] OJ No. 3039, 2002 CanLII 41073 (ON CA) at 29
    R v Pierce, [1997] OJ No. 715, 1997 CanLII 3020 (ON CA) at 11
  3.   R. v. Drabinsky and Gottlieb, 2011 ONCA 582, at paras. 160
    R. v. Coffin 2006 QCCA 471 at paras. 49, 70
  4. R v Pierce, [1997] OJ No. 715, 1997 CanLII 3020 (ON CA) at 5
  5. R v Howe, [2002] AJ No 1443, 2002 ABCA 277 at 3
    Dobois (2002) 163 CCC (3d) 259 (ONCA) at 272

Conditional Sentences[edit]

Conditional Sentences are available for fraud over $5,000 and should be considered by the court in any circumstances.[1]

However, the Supreme Court in Proulx stated that custodial sentences are preferable "[w]here punitive objectives such as denunciation and deterrence are particularly pressing, such as in cases in which there are aggravating circumstances".[2]

For most courts, the amount defrauded will be sufficient to determine if incarceration is required.[3]

In major frauds involving breach of trust, denunciation and deterrence are to be emphasized and will usually result in jail sentences.[4]

Certain courts have stated that conditional sentence orders should not be granted where there is a breach of trust.[5]

Incarceration is often ordered where there is no remorse.[6] Also where there is no acceptance of responsibility.[7]

Where there is exceptional or extreme personal mitigating circumstances, general deterrence can be satisfied by a conditional sentenece.[8]

Restitution and community service work are not sufficient to amount to exceptional circumstances to warrant a conditional sentence. [9]

Where the aggravating factors overwhelm the mitigating factors then a sentence of imprisonment is mandated.[10]

The “ruin and humiliation” brought upon the accused and his family due to the offence and professional loss coupled with a conditional sentence can be sufficient to satisfy denunciation and deterrence.[11]

  1. R v Moulton, (2001) 160 CCC (3d) 407, 2001 SKCA 121 (CA)
  2. R v Proulx, 2000 SCC 5 at 114
  3. R v Bogart [2002] OJ No. 3039 2002 CanLII 41073 (ON CA) at para 34
    R v Evans 2003 NBQB 54
    R v Williams [2003] OJ No. 2202 (CA)
    R v Kuriya 2002 NBQB 306 aff’d at 2003 NBCA 63
    R v Black [2003] NSJ No 168, 2003 NSSC 99
  4. R. v. MacEachern, [1978] O.J. No. 987, at para 8, 9 (ONCA)
    R. v. Tucker, [1988] N.S.J. No. 33, at page 18 (NSCA)
    R. v. Hill, [1997] N.S.J. No. 97, 1997 CanLII 9832 (NS SC) at paras 13-15 (N.S.S.C.)
    R. v. Toews, [2007] A.J. No. 944, 2007 ABPC 235 at para 36, 37 (ABPC)
    R. v. McKinnon, [2005] A.J. No. 12, 2005 ABCA 8 at paras 60-63, (ABCA)
    R. v. Reid, [2004] Y.J. No. 3, 2004 YKCA 4 at para 13 (YTCA)
    R. v. Steeves, [2005] N.B. J. No. 351, at para 10 (NBCA)
    R. v. Cremer, [2007] A.J. No. 989, 2007 ABQB 544 at para 26 (ABQB)
    R. v. Miller, [2010] A.J. No. 174, 2010 ABPC 37 at para 62
    R v Inglis, 2002 BCPC 242, at para 5 (“the law has made it clear that unless there are exceptional and unusual circumstances, people who find themselves before the court on offences that involve a breach of trust should expect that a period of incarceration is the likely consequence.”)
    Howe, [2002] AJ No 1443 at para. 3 - concerned tax fraud
    c.f. R v Matchett, [1997] NBJ No 176 (CA), 1997 CanLII 9511 (NB CA) at 5
  5. R. v. Pierce (1997), 114 C.C.C. (3d) 23 (C.A.)
  6. R v Mastromonaco [2002] OJ No 4612 at 28
  7. R v Bradbury supra ta 28 to 30 and Desormeau at 20
  8. R v Bunn 2000 SCC 9
    R v Kratky, 1997 CanLII 936 (BC SC)
    R. v. Anderson-Davis, [2000] B.C.J. No. 88, 2000 BCSC 42
  9. McEachern (1978), 42 C.C.C.(2d) 189 (Ont.C.A.) at 191
  10. R. v. Bodnarchuk, 2008 BCCA 39 at 20
    R. v. Mohebtash, 2007 BCCA 427 at para. 10
  11. R v Bunn 2000 SCC 9 per McLaughlin CJ. at para. 23

Ranges[edit]

Ontario cases have set the generally accepted range of sentence of major fraud at 3 to 6 years.[1]

By function of s.730, discharges are not available for offences of fraud over $5,000.

  1. R. v. Dobis 2002 CanLII 32815 (ON CA) at p. 271
    R. v. Drakes, 2009 ONCA 560 at paras. 24-6 (leave to appeal refused, [2009] S.C.C.A. No. 381)
    R. v. Bertram, [1990] O.J. No. 2013 (C.A.), at p. 3
    R. v. Wilson, [2003] O.J. No. 1047, 2003 CanLII 48181 (ON CA) at para. 5

Factors[edit]

Aggravating factors for major fraud include: [1]

  • breach of trust[2]
  • magnitude or size of the fraud[3]
  • degree of sophistication, planning and deception[4]
  • number of dishonest transactions undertaken in the offence[5]
  • Duration of the dishonesty[6]
  • number of victims[7]
  • vulnerability of the victims[8]
  • the impact of the fraud upon the victims
  • nature and extent of the loss
  • efforts to conceal the fraud, including forging of documents
  • personal benefit[9]
  • the number of people involved and the role of the offender
  • greed as sole motivator[10]
  • termination of scheme by arrest or voluntarily
  • prior record[11]

Mitigating factors for major fraud include:[12]

  • “substantial recovery” of the proceeds of the dishonest conduct
  • voluntary repayment of restitution before sentencing[13]
  • honest motive, including a medical condition, addiction, or other motivating cause existing other than greed or financial gain
  • major personal impact from offence, such as loss of job[14]

no record[15]

No prior record is a limited factor since it is a common situation and, at least in relation to major fraud, the offender would have been less likely to have been in the position to commit the offence had the offender had a prior record. Further, the lack of record is usually trumped by the emphasis on general deterence.[16]

Good character is also of a limited factor as the good character will often help facilitate the offence. The person wil often have a place in the community and a good reputation and without which they would not have been able to commit the offence itself.[17]

Factors such as the presence of gambling addictions cannot be considered mitigating however can have the effect of “[reducing] moral blameworthiness”[18]

Theft of money by person who are entrusted with it in the course of his emoployment amounts to a abuse of trust within the meaning of s.718.2(a)(iii).[19]

  1. R. v. Cunsolo, 2012 ONSC 114 at 41
  2. Evans 2003 NBQB 54
    see s. 718.2(a)(iii)
  3. R v Kuriya, 2002 252 NBR (2d) 247
    Evans [2003] NBJ No 47 (QB), 2003 NBQB 54
  4. R v Howe supra
  5. R v Bjellebo, [2000] OJ No 478 (SC)
  6. R v Fehr, [2001] SJ No 147 (CA), 2001 SKCA 37
  7. R v Wheeler, [2001] NJ No 240
  8. R v Evans 2003 NBQB 54 at 12 and Adler [1999] NBJ No 100 (CA)
    R v Desormeau [2001] NJ No 341; R v Bradbury, (2002) 218 Nfld 33 -- institutional victims
  9. R v Bogart, 2002 CanLII 41073 (ON CA)
  10. R v Wisniewski (2002) 166 Man R (2d) 73, 2002 MBCA 93 (CA)
  11. R v Harding [2002] BJ No 2502 (CA)
  12. R. v. Cunsolo, 2012 ONSC 114 at 39
  13. R v Inglis, [2002] BCJ No 1551 (PC)
    Bogart [2002] OJ No. 3039 2002 CanLII 41073 (ON CA)
  14. R. v. Loewen, 2002 CanLII 37336 (MB PC)
  15. R v Bogart [2002] OJ No. 3039, 2002 CanLII 41073 (ON CA)
  16. R v Bogart (2002) 61 OJR(3d) 75 2002 CanLII 41073 (ON CA)
    R v Bertram 1990 40 OAC 317 at 319
  17. R v Foran [1970] 1 CCC 336 (ONCA) at 337 (“Any mitigation from [the accused position in the community] would seem to us to be more than offset by the fact that the very nature of this type of crime requires that it be committed by persons who have an established place in the community and are allegedly honourable gentlemen.”)
  18. R. v. Alakija, 2007 ABPC 234 at para 13
  19. Veno v. R., 2012 NBCA 15 at 13
    R. v. Chaulk, 2005 NBCA 86
    R. v. McKinnon, 2005 ABCA 8, [2005] A.J. No. 12 -- embezzlement by a bookkeeper R. v. Holmes, 1999 ABCA 228 -- bank manager stealing from accounts
    R. v. Reid, 2004 YKCA 4 -- cashier stealing from employer R. v. Pierce, [1997] O.J. No. 715 (C.A.) -- comptroller sealing from employer
    R. v. Dobis, [2002] O.J. No. 646, 2002 CanLII 32815 (ON CA) -- fraud by accounting manager
    R. v. Clarke, [2004] O.J. No. 3438 (C.A.) -- bank telephone agent stealing from accounts R. v. Bowes (J.M.), (1994), 155 N.B.R. (2d) 321 (C.A.) -- lawyer stealing trust funds

Relevant Probation Terms[edit]

  • Assessment and counselling
  • No contact with victims or related parties

Ancillary Orders[edit]

See Also[edit]