Jody Berkes defends Theft (s. 322 Criminal Code of Canada) and Fraud Charges (s. 380 Criminal Code of Canada) in Toronto, Etobicoke, North York, Scarborough, Newmarket, Brampton and throughout Ontario. 

Being charged with a criminal offence is difficult for anyone, but it can be especially intimidating being charged with Theft under s. 322 or Fraud under s. 380 of the Criminal Code.  Being charged with this type of offence can result in being:

  • Arrested at home or at work.
  • Prevented from returning to work.
  • Prevented from having contact with co-workers or friends.
  • Subject to discipline by regulatory bodies such as (OMVIC, Real Estate, Financial Services)
  • If convicted, being unable to be employed in certain financial fields.
  • If convicted having a criminal record that potential employers will find out about.

The lawyers at Berkes Law can help answer these and other questions regarding your Fraud s. 380 Criminal Code charges and other related charges. 

What are “Theft and Fraud charges?”

The offence of Theft is set out at s. 322 of the Criminal Code of Canada.  The offence is broken down by the value of the item that is subject to the theft, under or over $5,000.  In addition to outright stealing something, a Crown can prove any of the following which will be a theft:

  • to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
  • to pledge it or deposit it as security;
  • to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
  • to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

In addition to Theft at s. 322, the following offences are similar in nature:

  • S. 326 Theft of Telecommunication Service
  • S. 328 Theft by or From Person with Special Property Interest
  • S. 330 Theft by person Required to Account
  • S. 331 Theft by Power of Attorney
  • S. 332 Misappropriation of Money Held Under Direction
  • S. 333.1 and 335 Theft of or Taking Motor Vehicle Without Consent

Fraud charges are a collection of offences that require the Crown to prove some form of deceit to make out the offence.  These offences include:

  • S. 380 Fraud
  • S. 381 Using the Mails to Defraud
  • S. 382 Fraudulent Manipulation of Stock Exchange Transactions;
    S. 382.1 Insider Trading
    S. 383 Gaming in Stocks (i.e. artificially manipulating stock prices)
  • S. 385, 386 and 387 Frauds involving Property Title Documents
  • S. 397, 398 and 399 Falsification of Business Documents
  • S. 400 Issuing a False Stock Prospectus
  • S. 402.1, 402.2 and 403 Identity Theft
  • S. 406, 407, 408, 409, 410, 411 412, 416, and 417 Creating and Dealing in Counterfeit Goods and Trademarks
  • S. 426 Secret Commissions (e.g. undisclosed financial kickbacks)

Fraud Charges also relate to offences that require the Crown to prove that an accused has false documents, credit cards, other “forgeries” or they possessed equipment (analog or digital) to help make these forged documents.  These offences include:

  • S. 342 and 342.01 Theft, Forgery, etc. of Credit Card or Possession of Instruments for Forging Credit Cards
  • S. 342.1 and 342.2 Unauthorized Use of a Computer or Devices
  • S. 366, 367, 368 Forgery, Uttering a Forged Document

Theft and Fraud Charges often begin as investigations by agencies or companies other than the police. 

Although most police departments have dedicated fraud squads (e.g. The Anti-Rackets Branch of the OPP) many frauds begin as investigations by outside agencies.  The Competition Bureau may investigate, The Ontario Securities Commission (and other Provincial Regulators), The Financial Services Regulatory Authority of Ontario, various banks in house Fraud Prevention Teams, etc.

Should I cooperate with these outside investigators?

It is important to understand that the information that you provide these non-police agencies may, in certain cases, be used in potential criminal code prosecutions.  There are limits to what information that they can use (e.g. compelled information) to further criminal investigations.  Additionally, in certain regulated fields, you can be subject to civil or quasi criminal prosecutions based on the information you provide.  If you are being questioned, you should seek the advice of one of the lawyers at Berkes Law regarding the investigation.  Steps you take to protect yourself at the outset of an investigation may minimize criminal or quasi criminal penalties or avoid charges altogether.

Theft and Fraud Charges Carry Serious Penalties

If you are convicted of Theft or Fraud over $5,000 you are ineligible for house arrest.  That means if you are convicted for something that costs $5,000.01, and a judge determines that your sentence involves custody, you will go to jail (at the very least on weekends). 

There are other aggravating factors that can affect a sentence for fraud leading to a period of jail are:

  • S. 380(1)(a) if the value of the fraud exceeds $1,000,000 there is a 2 year minimum sentence
  • S. 380.1 sets out the following factors that will make a fraud more serious and increase the sentence, including being sent to jail:

(a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;

(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;

(c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;

(d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community;

(e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and

(f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

  • Theft or Fraud involving employers
  • Theft or Fraud which caused people to lose their life savings
  • Theft or Fraud which took advantage of people’s vulnerabilities

The Lawyers at Berkes Law defend you:

The Lawyers at Berkes Law are experienced at defending Theft and Fraud charges.  Often times the evidence used in prosecuting these offences are obtained through the execution of Search Warrants.  The Lawyers at Berkes Law are skilled at the legal challenges involving search warrants.  They may be able to invalidate the warrant, exclude the evidence and secure your acquittal.  Even if the evidence is admitted, the Lawyers at Berkes Law are skilled at arguing that the evidence may not show that you committed a fraud.  Finally, the Lawyers at Berkes Law are skilled at cross-examining witnesses, pointing out contradictions and revealing their hidden motives to testify.  At trial we will do everything within our power to secure an acquittal for our clients.

What happens if I did it?

In addition to the impossibility of being bonded, if you have a Theft or Fraud conviction, a criminal record for may limit your opportunity for employment.  In those cases, the Lawyers at Berkes Law will work hard to minimize the negative consequences of a criminal charge.  We can often find a way to resolve a case that convinces the Crown not to rely on these aggravating factors keeping our clients out of jail and able to eventually put their lives back together. 

What Happens if I am arrested for theft or fraud?

If you are arrested you will want to review the article on Right to Counsel and Right to Silence.  You will also want to review the article on Bail / Release.