If you have been charged with fraud for the first time, you may be concerned about the consequences you are facing, your options moving forward and what you can do to minimize the impact if there is signficant evidence for a conviction. Luckily, there are a few ways you may reduce the impact of the charge.
Diversion/Alternative Measures Program
The most common way to reduce the impact of the charge is by diversion through the alternatives measures program. This means you are diverted out of the court system into a reparation program where you repay society for your wrongdoing. For example, donating to charity or completing community services. The Crown Attorney will review your matter along with the following considerations before deciding whether you are eligible for such a program: your past criminal record, cooperation with police, the seriousness of the offence, the cost of prosecuting the offence, the impact of the criminal record and the wishes of the victim. While you do not need to submit a formal confession, a social worker will ask you several questions surrounding the theft/fraud and determine whether you understand the nature of the wrongdoing. If you successfully complete the terms of your diversion program, the charges will be withdrawn by the crown prosecutor.
Absolute or Conditional Discharge
Where you are not eligible for a diversion program, you may apply for either an absolute or conditional discharge. A conditional discharge means a judge will provide a list of conditions, which if you successfully meet, you will be discharged from the offence. Under a conditional discharge, you must admit to being guilty of the offence, however you will not be convicted of the offence and it will not appear in any police database after three years after completing the conditions.
For example, in R. v. Lebel, 2018 ONCJ 748 (CanLII), an employee was charged with fraud over $5,000 as he was stealing money from his employer for over five years. The court considered the following factors:
The defendant was a first-time offender;
The defendant plead guilty and expressed remorse in his plea;
The willingness of the defendant to comply with court-ordered restitution payments;
The progress the defendant made in counselling resulting in his abstaining from gambling and drugs; and
The community support.
The court ultimately held that given the factors above and the purpose and principles of sentencing, the appropriate sentence for the defendant was a conditional discharge of two years followed by three years of probation in addition to his monthly restitution payments. The conditions on his first two years included that his first 8 months would be on house arrest, the subsequent eight months he would have a curfew and he would have a reporting condition. Further, he would attend counseling for drug abuse, gambling and obtain psychiatric assistance for his anxiety and depression disorders.
Rarely, a court will impose an absolute discharge where you are free from criminal conviction. However, the record will appear for one year after the imposition of the discharge, after which it will be expunged.
For example, in R. v. Di Gianni, 2011 ONCJ 792 (CanLII), the offender plead guilty to a charge of public mischief in relation to an attempted fraud. The defendant devised an insurance fraud scheme to recover insurance proceeds on a reportedly stolen vehicle whereas his friend would ship the vehicle overseas. The insurance company recovered the shipping documents and notified the police that the offender had abandoned his claim for insurance after which, he was arrested and charged. The court found that since the offender accepted responsibility for his action, did not have a prior criminal record, made full restitution, was encouraged by another individual to commit the crime at a time the offender was financially and emotionally stressed, completed hundreds of hours in community service, among many other factors, an absolute discharge was appropriate.
Minimally Restrictive Sentencing
If you are not eligible for a discharge, you may consider minimally restrictive sentencing. This means you may have to pay a fine (in which case you will have the conviction on your criminal record that you may later apply for a pardon from). Another option is a suspended sentence which is similar to a conditional discharge wherein you must comply with various conditions of your probation order, however you will have a conviction registered on your record.
Contact David Wilcox, With Over 30 Years as a Fraud Lawyer in Barrie
It can be hard for you to know what options you may be eligible for and which of these are most like to succeed. Our team of Barrie criminal lawyers have significant experience and success defending fraud and can assess what is most appropriate in your circumstances. It is essential to speak to a lawyer as soon as possible to mitigate the circumstances and take steps immediately to secure the best result for you. Feel free to contact our team any time at 1-855-721-6642 to discuss your matter.