Fraud and White Collar Crimes
Conviction of a white collar crime can result in jail time, particularly in cases of large-scale fraud. Charges are often laid for questionable activity that may appear illegal but was in fact the result of a bad investment or a business deal gone wrong.
Acts must meet certain criteria to be considered fraudulent. Fraud, by definition, involves specific elements such as deceit. The prosecution must meet a high standard in order to prove these elements. Defence counsel can, when appropriate, demonstrate the activity is a civil dispute such as breach of contract and is not criminal. Often, we can make this argument to Crown counsel at the investigation stage and prevent charges from being laid, or alternatively, have them withdrawn.
Successful defence involves an in-depth understanding of complex financial transactions, investment protocols and regulatory regimes in Quebec and Canada. Mr. Slimovitch’s understanding of this aspect of the case, in addition to his extensive criminal defence experience, contributes to his ability to serve clients as they preserve their financial and personal integrity.
Most of Mr. Slimovitch’s clients charged with white collar crimes are unfamiliar with the justice system. It is a time-consuming and stressful process. He guides them through all aspects of criminal process and acts as their ardent defender in court.
What makes fraud and other white collar crime particularly difficult is the enormity of the evidence. The disclosure in many of these prosecutions can encompass boxes upon boxes; a recent case handled by Mr. Slimovitch involved over 40 DVD’s of evidence.
Examples of white collar crimes include :
Fraud arising out of bankruptcy proceedings
Credit card fraud
Breach of trust
Tax fraud or tax evasion
Tax evasion and other tax fraud charges can affect your liability under more than just the Criminal Code. Many cases will also engage other complex legislation such as the Income Tax Act and others. It takes an experienced criminal defence lawyer to understand such laws and how they may affect your defence.
Financial crimes include fraud, theft, extortion, arson, tax evasion, failing to file tax returns, laundering, possession of proceeds of crime and breach of trust. Not all of these offences are created by the Criminal Code. In fact, many serious crimes are, as mentioned above, contained in the Income Tax Act, Excise Tax Act, and the Copyright Act, amongst others. Irrespective of the governing statute, the Courts have made it quite clear that in cases where there is a high level of organization, or in cases involving breaches of trust against an employer, jail will be imposed. Stiff sentences exist to discourage the financial motive underpinning these crimes. Upon being charged, the accused quickly realizes that the governing legislation is inordinately complex. If charged with a financial crime, counsel should be retained immediately. There are often damage control measures that can be undertaken to mitigate the potential disruption to your life. Failing that, there are technical or substantive defences that can be argued.
Protecting Your Professional Reputation
Being charged with fraud is not only serious because of the possible financial impact it can have on you or your company but also because the impact such charges can have on your reputation. If you or your company is currently being investigated for fraud, engaging the assistance of a criminal defence lawyer with experience handling the sophisticated nature of such claims is essential.
Fraud is an offence that requires an element of deceit or a false representation such as attempting to defraud the public, or any person, of their property, money, or any valuable service (Criminal Code of Canada, s. 380(1)). The varying levels within the category of fraud offences are determined by the value out of what the victim (or potential victim(s)) are being defrauded. Thus, fraud can be divided into two different levels: fraud where the value exceeds five thousand dollars and is typically considered an indictable offence, or fraud where the subject matter is less than five thousand dollars and is punishable on summary conviction (Criminal Code of Canada, s. 380(a), (b)). Within both categories, aggravating circumstances include whether or not the public is being targeted, and the magnitude of harm.
Fraud under $5,000
A fraud under five thousand dollars offence is typically of a lower scale and can range in sophistication. Fraud under five thousand dollars usually proceeds under summary conviction (Criminal Code, s. 380(b)(ii)) and dependent on the circumstances of the offence, may or may not carry with it a sentence which includes imprisonment. Fraud can take place where a shop owner misrepresents a product to one of their customers by overstating its value or deceiving them as to its purpose. Consider a landscaping company that is contracted to build a deck, and instead of using new lumber uses old or previously used supplies in order to save money and thus defraud their client. Aside from the potential tax implications which may have taken place, the misrepresentation of value of the goods or services could constitute fraud.
Many of those charged with low level fraud are first time offenders who likely operate legitimate businesses, and because of this may have a lot to lose if their charge is not handled properly. Seeking proper counsel is imperative in this situation in order to achieve the best result possible and to control the damage it may cause to your future. For those who have had prior interactions with the legal system for theft or fraud, imprisonment may be contemplated by the Crown. Therefore it is very important to obtain counsel.
Fraud over $5,000
Fraud over five thousand dollars, although perhaps not as common as its less serious “under $5,000” counterpart, nonetheless does commonly take place in a variety of different ways. Fraud over five thousand dollars carries with it a maximum penalty of fourteen years imprisonment, and beneath that the likely sentence is escalated by the value of what is being defrauded, among other factors (Criminal Code, s. 380.1). Although a fraud offence where the value of the property or services is considered to exceed five thousand dollars carries with it a considerably lengthy maximum sentence, the prosecution may move to proceed under summary conviction.
Aggravating factors for sentencing on fraud charged are set out in section 380.1 of the Criminal Code:
the magnitude, complexity, duration and degree of planning;
whether the offence affected the Canadian economy or the financial market;
it affected a large number of victims (and also given the victims circumstances e.g. their age, health and financial situation);
the offender exploited their high regard or reputation within the community;
they did not comply with regulations or professional standards
the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the offence