Sentencing Fraud: Difference between revisions

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==Sentencing Principles==
==Sentencing Principles==
{{seealso|Property and Fraud Offences (Sentencing)}}
{{seealso|Property and Fraud Offences (Sentencing)}}
; Primacy of General Deterrence and Denunciation
Major instances of fraud over $5,000 require emphasis on general deterrence and denunciation.<ref>
Major instances of fraud over $5,000 require emphasis on general deterrence and denunciation.<ref>
{{CanLIIRP|Dobis|1dqkj|2002 CanLII 32815 (ON CA)|163 CCC (3d) 259}}{{perONCA|MacPherson JA}} at 42<br>
{{CanLIIRP|Dobis|1dqkj|2002 CanLII 32815 (ON CA)|163 CCC (3d) 259}}{{perONCA|MacPherson JA}} at 42<br>
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</ref>
</ref>


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 worthwhile.<ref>
The purpose of 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 worthwhile.<ref>
{{supra1|Pierce}} at 5</ref>
{{supra1|Pierce}} at 5</ref>


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{{CanLIIR|Rands||2005 BCPC 264}} at para 28<br>
{{CanLIIR|Rands||2005 BCPC 264}} at para 28<br>
{{CanLIIR|Burkart|1pqqb|2006 BCCA 446 (CanLII)}}{{atL|1pqqb|5}}
{{CanLIIR|Burkart|1pqqb|2006 BCCA 446 (CanLII)}}{{atL|1pqqb|5}}
</ref>
; Gravity of Fraud
Fraud's are often found to be offences with a high degree of moral blameworthiness as fraud involves a great deal of forethought and conscious effort. It has been called the "thinking person's" crime.<ref>
R v Elmadani, 2015 NSPC 65, at para. 10<br>
see also R v Pravo, 2018 ONSC 4889 at para 23{{fix}} ("There is considerable legitimate debate as to whether significant sentences imposed on offenders truly have a deterrent effect, either for the individual offender or for others who might be tempted to commit similar crimes. However, it is well recognized that if deterrence is relevant at all, it is particularly so for crimes of this nature, involving individuals who are intelligent and who deliberately set out to plan and execute sophisticated frauds. It is important that such individuals be aware that the significant risk of a long jail term outweighs any benefit or financial reward they may obtain from the fraud. ")
</ref>
</ref>


Revision as of 17:02, 9 August 2022

This page was last substantively updated or reviewed January 2020. (Rev. # 81270)
Fraud

Overview

See also: Fraud (Offence)

The Association of Certified Fraud Examiners created a taxonomy of fraud:[1]

  • Corruption
    • Conflict of Interest (purchasing schemes, sales schemes)
    • Bribery (Invoice kickbacks, bid rigging)
    • Illegal Gratuities
    • Economic Extortion
  • Asset misappropriation
    • Cash
      • Theft of Cash on Hand
      • Theft of Cash Receipts
        • Skimming
          • Sales (unrecorded, understated)
          • Receivables (Write-off schemes, lapping schemes, unconcealed)
          • Refunds or Other
        • Cash Larceny
      • Fraudulent Disbursements
        • Billing Schemes (shell company, non-accomplice vendor, personal purchases)
        • Payroll Schemes (ghost employee, falsified wages, commission schemes)
        • Expense Reimbursement Schemes (mischaracterized expenses, overstated expenses, fictitious expenses, multiple reimbursements)
        • Cheque Tampering (forged maker, forged endorsement, altered payee, authorized maker)
        • Register Disbursements (False voids, false refunds)
    • Inventory and Other Assets
  • Financial statement fraud
    • Net Worth/Net Income Overstatement (timing differences, fictitious revenues, concealed liabilities and expenses, improper asset valuations, improper disclosures)
    • Net Worth/Net Income Understatement (timing differences, understated revenues, overstated liabilities and expenses, improper asset valuations, improper disclosures)
  1. ↑ Fraud Taxonomy Tree

Offence Wording

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
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,

where the value of the subject-matter of the offence does not exceed five thousand dollars.

Minimum punishment

(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1) [fraud], 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.
[omitted (2)]
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.
[annotation(s) added]

– CCC

Note up: 380(1) and (1.1)


Defined terms: "Act" (s. 2), "person" (s. 2), and "testamentary instrument” (s. 2)

Draft Form of Charges

See also: Draft Form of Charges

See Fraud (Offence)

General Principles

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election		 Maximum Penalty
s. 380(1)(a) [fraud over $5,000]
From September 15, 2004		 N/A 14 years incarceration
s. 380(1)(b) [fraud not exceeding $5,000] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 380(1)(b) [fraud not exceeding $5,000] indictable election 2 years incarceration
s. 380(1)(a) [fraud over $5,000]
Until September 14, 2004		 N/A 10 years incarceration

Offences under s. 380(1)(a) [fraud over $5,000] are straight indictable. The maximum penalty is 14 years incarceration.

Offences under s. 380(1)(b) [fraud not exceeding $5,000] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
s. 380(1)(b) [fraud not exceeding $5,000] any
s. 380(1)(a) [fraud over $5,000]
Nov. 20, 2012 onward		 N/A
s. 380(1)(a) [fraud over $5,000]
September 15, 2004 to Nov. 20, 2012		 N/A
s. 380(1)(a) [fraud over $5,000]
Until September 14, 2004		 N/A
Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.


Mandatory Minimum

The mandatory minimum sentence for fraud over $1 million has been found in at least one instance to be unconstitutional as "cruel and unusual" punishment under s. 12 of the Charter.[1]

Conditional Sentences

Conditional sentences are available for offences of fraud under $5,000.

Conditional sentences are available for offences of fraud over $5,000 where the offence was committed prior to the amendment to s. 742.1 on November 20, 2012.[2]

Unless prohibited by law, the court should be considered a conditional sentence in all circumstances where incarceration is contemplated.[3]

Custodial sentences are considered preferable "[w]here punitive objectives such as denunciation and deterrence are particularly pressing, such as in cases in which there are aggravating circumstances".[4]

For most courts, the amount defrauded will be sufficient to determine if incarceration is required.[5]

In major frauds involving breach of trust, denunciation and deterrence are to be emphasized and will usually result in jail sentences.[6]

Certain courts have stated that conditional sentence orders should not be granted where there is a breach of trust.[7] However, others suggest that it is not a full prohibition. Rather is it rate where it is a large scale fraud.[8]

Incarceration is often ordered where there is no remorse.[9] Also where there is no acceptance of responsibility.[10]

Where there are exceptional or extreme personal mitigating circumstances, general deterrence can be satisfied by a conditional sentence.[11]

Restitution and community service work are not sufficient to amount to exceptional circumstances to warrant a conditional sentence.[12]

Where the aggravating factors overwhelm the mitigating factors, a sentence of imprisonment is mandated.[13]

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.[14]

Res Judicata

A person convicted of fraud and income tax evasion may be sentenced separately for each offence.[15]

  1. ↑ R v Plange, 2018 ONSC 1657 (CanLII), per Nakatsuru J, at paras 36 to 39
  2. ↑ List of Criminal Code Amendments
  3. ↑ R v Moulton, 2001 SKCA 121 (CanLII), 160 CCC (3d) 407, per Vancise JA
  4. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ at 114
  5. ↑ R v Bogart, 2002 CanLII 41073 (ON CA), [2002] OJ No 3039, per Laskin JA, leave ref'd, [2003] SCR vi, at para 34
    R v Evans, 2003 NBQB 54 (CanLII), per Glennie J
    R v Williams, 2003 CanLII 9650 (ON CA), [2003] OJ No 2202 (CA), per curiam
    R v Kuriya, 2002 NBQB 306 (CanLII), 658 APR 247, per Russell J aff’d at 2003 NBCA 63 (CanLII), per curiam
    R v Black, 2003 NSSC 99 (CanLII), [2003] NSJ No 168, per Murphy J
  6. ↑ R v MacEachern, [1978] OJ No 987(*no CanLII links) , at paras 8, 9 (ONCA)
    R v Tucker, [1988] NSJ No 33(*no CanLII links) , at p. 18 (NSCA)
    R v Hill, 1997 CanLII 9832 (NSSC), [1997] NSJ No 97, per Gruchy J, at paras 13 to 15 (N.S.S.C.)
    R v Toews, 2007 ABPC 235 (CanLII), [2007] AJ No 944, per Stevens-Guille J, at paras 36, 37 (ABPC)
    R v McKinnon, 2005 ABCA 8 (CanLII), [2005] AJ No 12, per Côté JA, at paras 60 to 63 (ABCA)
    R v Reid, 2004 YKCA 4 (CanLII), [2004] Y.J. No 3, per Hall JA, at para 13 (YTCA)
    R v Steeves, 2005 NBCA 85 (CanLII), [2005] N.B. J. No 351, per curiam, at para 10 (NBCA)
    R v Cremer, 2007 ABQB 544 (CanLII), [2007] AJ No 989, per Burrows J, at para 26 (ABQB)
    R v Miller, 2010 ABPC 37 (CanLII), [2010] AJ No 174, per Mcllhargey J, at para 62
    R v Inglis, 2002 BCPC 242 (CanLII), per Brecknell J, 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.”)
    R v Howe, 2002 ABCA 277 (CanLII), [2002] AJ No 1443, per Hunt JA, at para 3 - concerned tax fraud
    cf. R v Matchett, 1997 CanLII 9511 (NB CA), [1997] NBJ No 176 (CA), per Ayles JA at 5
  7. ↑ R v Pierce, 1997 CanLII 3020 (ON CA), 114 CCC (3d) 23, per Finlayson JA
  8. ↑ R v Williams, 2007 CanLII 13949 (ONSC), [2007] O.J. 1604, per Hill J, at paras 26 to 28 ("The sentencing option of a conditional sentence is not excluded from consideration in breach of trust fraud cases")
  9. ↑ R v Mastromonaco, [2002] OJ No 4612(*no CanLII links) at 28
  10. ↑ Desormeau, supra at 20
  11. ↑ R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183, per Lamer J
    R v Kratky, 1997 CanLII 936 (BC SC), per Curtis J
    R v Anderson-Davis, 2000 BCSC 42 (CanLII), [2000] BCJ No 88, per Boyle J
  12. ↑ R v McEachern, 1978 CanLII 2506 (ON CA), 42 CCC (2d) 189, per Howland CJ, at p. 191 (CCC)
  13. ↑ R v Bodnarchuk, 2008 BCCA 39 (CanLII), 254 BCAC 6, per Levine JA at 20
    R v Mohebtash, 2007 BCCA 427 (CanLII), per Finch CJ, at para 10
  14. ↑ R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183, per Lamer CJ, at para 23
  15. ↑ R v Beggs, 2003 BCCA 101 (CanLII), 180 BCAC 186, per Ryan JA
    R v Leo-Mensah, 2010 ONCA 139 (CanLII), 259 OAC 196, per Gillese JA

Sentencing Principles

See also: Property and Fraud Offences (Sentencing)
Primacy of General Deterrence and Denunciation

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 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 worthwhile.[4]

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

Where there is a "large-scale" fraud, it will generally attract a sentence of imprisonment absence "unusual circumstances".[6]

Gravity of Fraud

Fraud's are often found to be offences with a high degree of moral blameworthiness as fraud involves a great deal of forethought and conscious effort. It has been called the "thinking person's" crime.[7]

  1. ↑ R v Dobis, 2002 CanLII 32815 (ON CA), 163 CCC (3d) 259, per MacPherson JA at 42
    R v Bogart, 2002 CanLII 41073 (ON CA), [2002] OJ No 3039, per Laskin JA, leave ref'd, [2003] SCR vi, at 29, 33-36
    R v Wismayer, 1997 CanLII 3294 (ON CA), 115 CCC (3d) 118, per Rosenberg JA at 38
    R v Gray (LV) et al, 1995 CanLII 18 (ON CA), 76 OAC 387, per Carthy JA, at pp. 398-99
    R v Betram [1990] OJ No 2013(*no CanLII links) at 3 (CA)
  2. ↑ R v Howe, 2002 ABCA 277 (CanLII), [2002] AJ No 1443, per Hunt JA, at para 3
    Dobis, supra at 272
    Bogart, supra at 29
    R v Pierce, 1997 CanLII 3020 (ON CA), [1997] OJ No 715, per Finlayson JA, at 11
  3. ↑   R v Drabinsky and Gottlieb, 2011 ONCA 582 (CanLII), 274 CCC (3d) 289, per curiam, at para 160
    R v Coffin, 2006 QCCA 471 (CanLII), 210 CCC (3d) 227, per curiam, at paras 49, 70
  4. ↑ Pierce, supra at 5
  5. ↑ R v Howe, 2002 ABCA 277 (CanLII), [2002] AJ No 1443, per Hunt JA, at para 3
    Dobois, supra, at p. 272
  6. ↑ R v Rands, 2005 BCPC 264 at para 28
    R v Burkart, 2006 BCCA 446 (CanLII), at para 5
  7. ↑ R v Elmadani, 2015 NSPC 65, at para. 10
    see also R v Pravo, 2018 ONSC 4889 at para 23(complete citation pending) ("There is considerable legitimate debate as to whether significant sentences imposed on offenders truly have a deterrent effect, either for the individual offender or for others who might be tempted to commit similar crimes. However, it is well recognized that if deterrence is relevant at all, it is particularly so for crimes of this nature, involving individuals who are intelligent and who deliberately set out to plan and execute sophisticated frauds. It is important that such individuals be aware that the significant risk of a long jail term outweighs any benefit or financial reward they may obtain from the fraud. ")

Social Assistance Fraud

It is suggested that the "paramount consideration" whether dealing with fraud against welfare authorities is deterrence.[1] It has also been said that the focus should be upon "protection of the public".[2]

Defrauding publicly funded programs "corrodes the public's attitude to such forms of assistance -- and hence so undermines them".[3]

  1. ↑ R v Thurrott, 1971 CanLII 381 (ON CA), 5 CCC (2d) 129, per Gale CJ, at p. 129 ("this Court is unanimously of the opinion that the paramount consideration in determining the sentence is the element of deterrence. Welfare authorities have enough difficulties without having to put up with persons who set out to defraud them.")
  2. ↑ R v Bates, 1972 CanLII 1403 (ONSC), 9 CCC (2d) 74 (Ont.Co.Ct.), per Moore J, at p. 74 ("The cardinal principle in the determination of a sentence is the protection of the public.")
  3. ↑ R v Wilton, 1991 CanLII 7961 (SK CA), 93 Sask R 184, per Cameron JA
    see also R v Durocher, 1992 CanLII 8243 (SK CA), 100 Sask R 108, per Cameron JA

Factors

Section 380.1 states aggravating factors relating to fraud:

Sentencing — aggravating circumstances

380.1 (1) Without limiting the generality of section 718.2 [factors of sentencing], where a court imposes a sentence for an offence referred to in sections 380 [fraud], 382 [manipulating stock exchange], 382.1 [insider trading] and 400 [false prospectus], 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 [factors of sentencing], when a court imposes a sentence for an offence referred to in section 382 [manipulating stock exchange], 382.1 [insider trading] or 400 [false prospectus], 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.

Record of proceedings

(3) The court shall cause to be stated in the record the aggravating and mitigating circumstances it took into account when determining the sentence.
2004, c. 3, s. 3; 2011, c. 6, s. 3.
[annotation(s) added]

– CCC

Note up: 380.1(1), (1.1), (2), and (3)

Aggravating

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]
  • 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]
Character of Victim

Any dishonest attainment of money "is a serious crime with its own effects, even though [the victim] institution on its face seems able to bear the loss".[12]

Breach of Trust

Theft of money by persons entrusted with it in the course of his employment amounts to an abuse of trust within the meaning of s.718.2(a)(iii).[13]

"Large number of victims"

The reference to "large number of victims" under s. 380.1 (1)(c) of the code will include a group of more than 50 people.[14]

Groups a low as 13 people have been considered a "large group".[15]

However, numbers in the range of 4 people is not considered "large".[16]

Greed vs Advancement of Business

While greed as a motivation to fraud is recognized as a aggravating factor to sentence, the use of money to keep a business afloat is a moderate-to-high aggravating factor as well.[17]

  1. ↑ R v Cunsolo, 2012 ONSC 114 (CanLII), per curiam, at para 41
    see also R v Levesque, 1993 CanLII 4232 (QC CA), 59 QAC 307 CA, per curiam
  2. ↑ R v Evans, 2003 NBQB 54 (CanLII), per Glennie J
    see s. 718.2(a)(iii)
  3. ↑ R v Kuriya, 2002 NBQB 306 (CanLII), 252 NBR (2d) 247, per Russell J
    R v Evans, 2003 NBQB 54 (CanLII), [2003] NBJ No 47 (QB), per Glennie J
  4. ↑ Howe, supra
  5. ↑ R v Bjellebo, 2003 CanLII 26907 (ON CA), [2000] OJ No 478 (SC), per Sharpe JA
  6. ↑ R v Fehr, 2001 SKCA 37 (CanLII), [2001] SJ No 147 (CA), per Sherstobitoff JA
  7. ↑ R v Wheeler, 2001 CanLII 37646 (NLSCTD), 612 APR 277, per Dymond J and 2001 CanLII 37651 (NLSCTD), [2001] NJ No 240, per Dymond J
  8. ↑ R v Evans, 2003 NBQB 54 (CanLII), per Glennie J, at para 12 and R v Adler, 1999 CanLII 9438 (NB CA), [1999] NBJ No 100 (CA), per curiam
    R v Desormeau, 2001 CanLII 33851 (NLSCTD), [2001] NJ No 341, per Leblanc J
    R v Bradbury, 2002 CanLII 61687 (NLSCTD), 218 Nfld 33, per Adams J -- institutional victims
  9. ↑ R v Bogart, 2002 CanLII 41073 (ON CA), 167 CCC (3d) 390, per Laskin JA
  10. ↑ R v Wisniewski, 2002 MBCA 93 (CA), (2002) 166 Man R (2d) 73, per Steel JA
  11. ↑ R v Harding, 2002 BCCA 606 (CanLII), [2002] BJ No 2502 (CA), per Thackray JA
  12. ↑ R v McConnell, 2011 ONCJ 476 (CanLII), per Schnall J, at para 48
  13. ↑ Veno v R, 2012 NBCA 15 (CanLII), 995 APR 126, per Richard JA, at para 13
    R v Chaulk, 2005 NBCA 86 (CanLII), 200 CCC (3d) 442, per curiam
    R v McKinnon, 2005 ABCA 8 (CanLII), [2005] AJ No 12, per Côté JA-- embezzlement by a bookkeeper R v Holmes, 1999 ABCA 228 (CanLII), 237 AR 146, per curiam -- bank manager stealing from accounts
    R v Reid, 2004 YKCA 4 (CanLII), 194 BCAC 18, per Hall JA -- cashier stealing from employer R v Pierce, 1997 CanLII 3020 (ON CA), [1997] OJ No 715 (CA), per Finlayson JA -- comptroller sealing from employer
    R v Dobis, 2002 CanLII 32815 (ON CA), 163 CCC (3d) 259, per MacPherson JA -- fraud by accounting manager
    R v Clarke, 2004 CanLII 7246 (ON CA), [2004] OJ No 3438 (CA), per curiam -- bank telephone agent stealing from accounts R v Bowes (J.M.)155 NBR (2d) 321 (CA)(*no CanLII links) -- lawyer stealing trust funds
  14. ↑ R v Johnson, 2010 ABCA 392 (CanLII), 265 CCC (3d) 443, per curiam, at paras 35 to 36
  15. ↑ R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 65
    R v deKock, 2008 ABPC 279 (CanLII), AJ No 1147, per Ayotte J (13 victims)
    R v Winter, 2008 CanLII 47443 (NLPC), [2008] NJ No 260, per Hyslop J (15 victims)
    R v Banks, 2010 ONCJ 339 (CanLII), [2010] OJ No 3550, per West J (18 victims)
    R v Penney, 2008 ABPC 339 (CanLII), [2008] AJ No 1353, per Allen J (20 victims)
    R v Cruz, 2010 ONCJ 640 (CanLII), [2010] OJ No 5735, per Bellefontaine J (29 victims)
    R v Dhanaswar, 2016 ONCA 172 (CanLII), [2014] OJ No 6388, 2014 CarswellOnt 18873, per curiam (31 victims)
  16. ↑ e.g. R v Sanmugam, 2012 ONSC 6663 (CanLII), [2012] OJ No 5647, per Ducharme J
  17. ↑ R v Adams, 2015 ONCJ 161 (CanLII), per LeDressay J, at para 47
    R v Mazzucco, 2012 ONCJ 333 (CanLII), 101 WCB (2d) 651, per Clark J, at paras 58, 60 to 61

Mitigating

Mitigating factors for major fraud include:[1]

  • “substantial recovery” of the proceeds of the dishonest conduct
  • voluntary repayment of restitution before sentencing[2]
  • honest motive, including a medical condition, addiction, or other motivating causes other than greed or financial gain
  • major personal impact from offence, such as loss of job[3]
  • no record[4]

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 a record is usually trumped by the emphasis on general deterrence.[5]

Good Character

Good character is also of a limited factor as the good character will often help facilitate the offence. The person will 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.[6]

The good character of well-educated persons who commit offences of major fraud are not of great concern since they are the group that tends to commit these offences the most.[7]

The sentencing process for major fraud is "not really concerned with rehabilitation".[8]

Gambling Addiction

Factors such as the presence of gambling addictions cannot be considered mitigating, however, can have the effect of “[reducing] moral blameworthiness”[9]

  1. ↑ R v Cunsolo, 2012 ONSC 114 (CanLII), per Hill J, at para 39
  2. ↑ R v Inglis, 2002 BCPC 242 (CanLII), [2002] BCJ No 1551 (PC), per Brecknell J
    R v Bogart, 2002 CanLII 41073 (ON CA), 167 CCC (3d) 390, per Laskin JA
  3. ↑ R v Loewen, 2002 CanLII 37336 (MB PC), 168 Man R (2d) 48, per Wyant J
  4. ↑ Bogart, supra
  5. ↑ Bogart, supra
    R v Bertram and Wood (1990), 40 OAC 317, [1989] O. J. No 2123(*no CanLII links) , at p. 319 (OAC)
    R v Drabinsky, 2011 ONCA 582 (CanLII), per curiam, at para 160 ("In any event, this court and all other provincial appellate courts have repeatedly held that denunciation and general deterrence must dominate sentencing for large-scale commercial frauds. Denunciation and general deterrence most often find expression in the length of the jail term imposed.")
  6. ↑ R v Foran, 1969 CanLII 209 (ON CA), [1970] 1 CCC 336 (ONCA), per Gale CJ, at p. 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.”)
  7. ↑ Bertram and Wood, supra
  8. ↑ Bertram, supra
  9. ↑ R v Alakija, 2007 ABPC 234 (CanLII), per Bascom J, at para 13

Ranges

See also: Fraud (Sentencing Cases)

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

"Large-scale" fraud will typically be penitentiary sentence. A conditional sentence will not be appropriate in these cases.[2]

  1. ↑ R v Dobis, 2002 CanLII 32815 (ON CA), 163 CCC (3d) 259, per MacPherson JA, at p. 271 - stating 3 to 5 years
    R v Drakes, 2009 ONCA 560 (CanLII), 252 OAC 200, per curiam, at paras 24 to 26 (leave to appeal refused, [2009] SCCA No 381)
    R v Bertram, [1990] OJ No 2013 (CA)(*no CanLII links) , at p. 3
    R v Wilson, 2003 CanLII 48181 (ON CA), 174 CCC (3d) 255, per curiam, at para 5
  2. ↑ R v Cunsolo, 2014 ONCA 364 (CanLII), per curiam, at para 53

Ancillary Sentencing Orders

See also: Ancillary Orders and Fraud Prohibition Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 380(1)(a) or (2)
Stand-alone Restitution Order - Mandatory consideration under s. 380.3 s. 380
Section 380.2 - Fraud Prohibition Order (section 380.2) s. 380
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 380 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History of the Offence

See Also

References
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Property and Financial Offences
Offences / Sentencing
Fraud on the Government (121), Theft (322, 334), Motor Vehicle Theft (333.1), Breach of Trust (336), Unauthorized Use of Computer (342.1), Robbery (343, 344), Break and Enter (348), Unlawfully in a Dwelling (349), Possession of Break-in Instruments (351), Possession of Stolen Property (354, 355), Trafficking in Stolen Property (355.2, 355.4), Obtaining Property by False Pretences (362), Forgery (366, 367, 368), Fraud (380), Mischief (430), Arson (433, 434), Animal Cruelty (444, 445, 445.1 and 446), Counterfeiting (449, 450, 452)
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