FRAUD & BREACH OF TRUST DEFENCE LAWYER
Fraud Lawyer Ottawa • Fraud Lawyer Toronto
What are Fraud & Breach of Trust Charges
These are likely the two most commonly charged dishonesty offences. Fraud involves obtaining a benefit (not necessarily financial) through dishonesty. Breach of trust involves abusing a position of authority for self-benefit and against the interests of the person to whom you owe the duty of trust.
Why Fight Fraud & Breach of Trust Charges
Fraud and breach of trust upon conviction can attract some of the most severe sentences of imprisonment for first offenders of any offences. Sometimes much more severe than the sentences for violent offences if a lot of money is involved. Larger frauds can range into over four year penitentiary sentences, plus huge fines in lieu of forfeiture, restitution, and potentially devastating income tax consequences.
Tax fraud is a serious criminal offence itself,which can be prosecuted under the Income Tax Act (where it attracts up to 5 years imprisonment) or the Criminal Code as a fraud against the government (where up to 14 years imprisonment is possible).
How to Win a Fraud or Breach of Trust Trial: 3 Fraud Defences that Work
1. Carelessness is not an offence
Both fraud and breach of trust are mens rea offences, meaning the prosecution needs to prove that you intentionally committed the offence. Simple carelessness, negligence or recklessness is insufficient to make out the offence.
Sometimes intent will be inferred from the circumstances because it's impossible to truly look inside a person's mind for intent. But knowledgable defence counsel may be able to raise a reasonable doubt with a court as to whether a criminal offence was committed on the basis of it being easy to get careless or make mistakes with complex financial transactions and record keeping.
2. Civil or regulatory liability does not establish a criminal offence
Although the facts underlying an alleged fraud may have led to a civil law suit or regulatory proceedings by a body like a securities regulator being commenced against you, neither of those proceedings faces a criminal standard of proof. Both may only face "civil" standards of proof on a balance of probabilities.
Because the punishments and stigma associated with "criminal" offences are so severe, only the highest standard of proof will suffice: proof beyond a reasonable doubt. That can be a very difficult level of proof for a prosecutor to present, especially if the case is vigorously challenged by defence counsel.
3. There is an insufficient paper trail
An investigation into fraud or breach of trust might be started based on suspicion and the complaints of others, but a prosecution needs hard proof to be successful. Most fraud and breach of trust charges are "paper cases" based on a chain of paper or electronic documents supposedly linking the alleged acts to the accused.
Sometimes the documents needed to prove a case might have never existed, sometimes it may be impossible to locate them even when they do exist, sometimes they may have been destroyed (like for electronic messages or banking data whose lifetime is measured in months or years), or sometimes it may be impossible to obtain them (like when they are located overseas in a jurisdiction that will not cooperate with Canadian authorities).