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Charged, or someone you know
The documents are the case. Gather everything before the first appearance.
Fraud Charges. Deceit, Deprivation And Doubt
Fraud allegations are document-heavy and slow-moving, and they are frequently built on inference rather than direct evidence. This page sets out what the Crown must prove and how these prosecutions are properly tested.
Section 380Fraud Over $5,000RestitutionDocument Cases
Section 380 of the Criminal Code requires proof of deceit, falsehood or other fraudulent means, and of deprivation or a risk of deprivation. An honest mistake, a failed venture and a civil debt are not fraud.
Fraud Charge Defence
5000$
Statutory Value Threshold
14Years
Maximum, Fraud Over $5,000
1M$
Threshold for Minimum Sentence
380CC
Charging Provision
Quick Answer
What should I do if I am being investigated for fraud but have not been charged?
Retain counsel immediately and decline to attend an interview or hand over documents until you have advice. You are not obliged to explain yourself to investigators, and fraud interviews are recorded and used at trial. Preserve your records rather than deleting anything. Counsel can contact the investigator, establish what is alleged, and arrange a surrender if a charge is laid.
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THE OFFENCE
What Fraud Requires
Section 380(1) of the Criminal Code makes it an offence to defraud the public or any person, whether ascertained or not, of any property, money, valuable security or service, by deceit, falsehood or other fraudulent means. Two elements must be proved. The first is a prohibited act: deceit, falsehood, or other fraudulent means, that last category covering conduct that a reasonable person would regard as dishonest. The second is deprivation, meaning actual loss, or the placing of the victim's pecuniary interests at risk. Alongside those, the Crown must prove subjective knowledge of the dishonest act and of the deprivation or risk it created.
Where the value of the subject matter exceeds $5,000, fraud is an indictable offence with a maximum of fourteen years under section 380(1)(a). Where it does not exceed $5,000, section 380(1)(b) makes it a hybrid offence with a maximum of two years by indictment. Section 380(1.1) prescribes a minimum sentence of two years imprisonment where the total value of the fraud exceeds one million dollars.
Charges frequently laid alongside fraud include false pretences under section 362, forgery and uttering under sections 366 and 368, identity theft under section 402.2, identity fraud under section 403, theft by a person holding a power of attorney under section 331, and possession of property obtained by crime under section 354. Each has its own elements, and a charge that fits one theory poorly may not fit another at all.
THE LINE
Fraud, Breach of Contract and Bad Judgment
A great many fraud complaints are, on analysis, civil disputes reported to the police. A business that fails owing money is not a fraud. An optimistic projection that did not come true is not a fraud. A loan that was not repaid is not a fraud. What converts a commercial failure into a criminal offence is dishonesty known to the accused at the time, coupled with deprivation. Establishing that distinction, with the contemporaneous documents, is often the whole of the defence.
Feature
Civil claim
Criminal fraud, section 380
Who brings it
The person who says they lost money
The Crown, following a police investigation
Standard of proof
Balance of probabilities
Beyond a reasonable doubt
Mental element
Often none required for breach of contract
Subjective knowledge of the dishonest act and the deprivation or risk
Honest failure of a venture
May still ground a claim in debt
Not an offence without dishonesty known at the time
Repayment of the money
Usually ends the matter
Relevant to sentence and sometimes to resolution, but does not by itself end a prosecution
Outcome
Judgment for damages
Acquittal, withdrawal, discharge, or conviction and sentence
It is worth saying plainly: repaying the money does not automatically end a fraud prosecution. It is highly relevant, and full restitution before sentencing can change the range materially, but the decision to proceed belongs to the Crown. Any repayment should be structured with advice, because unstructured payments accompanied by explanatory messages can become evidence.
HOW THESE CASES RUN
Document-Heavy and Slow
1
Investigation
Fraud investigations often run for months before any charge, using production orders for banking records, search warrants and interviews. If you learn you are under investigation, that is the point to obtain counsel, not after the arrest.
2
Charge and release
Most fraud accused are released on an undertaking or after a bail hearing, commonly with conditions restricting financial dealings or contact with complainants.
3
Disclosure, usually electronic
The Crown brief in a fraud case can run to tens of thousands of pages of banking records, emails and spreadsheets. The Stinchcombe duty extends to all of it, and reviewing it properly takes real time.
4
Election and pre-trials
For fraud over $5,000 the accused elects the mode of trial under section 536(2). Judicial pre-trials narrow the issues, and admissions of undisputed documents can shorten a trial substantially.
5
Trial or resolution
Resolution may involve a plea to a narrower allegation with an agreed restitution order, or the matter proceeds to trial on the documents and the inferences the Crown asks the court to draw.
Because these files are slow, delay under section 11(b) of the Charter is a genuine issue. R. v. Jordan sets a presumptive ceiling of 18 months in the Ontario Court of Justice and 30 months in the Superior Court of Justice or where there has been a preliminary inquiry. A preliminary inquiry is only available where the maximum penalty is fourteen years or more, which includes fraud over $5,000.
DEFENDING THE ALLEGATION
Where Fraud Prosecutions Are Tested
The most common answer is the absence of the required mental element. Fraud requires subjective knowledge. An accused who genuinely believed the representation was true, who relied on an accountant or a partner, who did not know a particular document had been altered, or who was themselves deceived, does not have the knowledge section 380 requires. Where responsibility inside an organisation was diffuse, proving that this accused knew is often the Crown's hardest task.
The second is deprivation. If no one lost anything and no pecuniary interest was placed at risk, an element is missing however unattractive the conduct. The third is identity and attribution, which matters in files built on account access, shared credentials or corporate signing authority. The fourth is the reliability of the Crown's reconstruction: forensic accounting summaries are opinion built on selections from a record, and both the selections and the assumptions can be examined.
Charter issues arise in fraud files as elsewhere. Production orders and search warrants can be challenged under section 8 where the information to obtain was inadequate or overbroad. Statements taken during a lengthy interview raise voluntariness and section 10(b) questions. Where a breach is established, section 24(2) and the framework in R. v. Grant govern exclusion.
If you are contacted by investigators before any charge
You are not required to attend an interview, to provide documents in the absence of a production order or warrant, or to explain your side of a business dispute to police. The invitation to give your explanation is genuine, but so is the risk. Obtain counsel first. A lawyer can make contact on your behalf, confirm what is actually being alleged, and where appropriate arrange a surrender rather than an arrest at work or at home.
THE VARIETIES
What Gets Charged as Fraud
Section 380 is drafted broadly, so a wide range of very different situations are prosecuted under the same provision. Employment-related allegations involve expense claims, payroll manipulation, unauthorised transfers or diversion of client payments, and are frequently accompanied by a charge under section 336 or section 380 combined with breach of trust. Investment allegations concern representations made to raise money and may attract parallel proceedings before the Ontario Securities Commission. Insurance allegations concern claims said to be inflated or fabricated. Benefit and assistance allegations concern eligibility declarations. Credit card and identity matters are charged under sections 342, 402.2 and 403.
The defence differs with the category. In an employment file, the central question is often authorisation: whether a practice was known and tolerated, whether an approval existed informally, and whether the accounting reconstruction is accurate. In an investment file, it is whether representations were honestly held at the time, judged against contemporaneous documents rather than against the outcome. In a benefits file, it is frequently whether a declaration was understood, which raises real questions about literacy, language and the design of the form itself.
Because so much depends on the documents, an early and organised gathering of your own records matters enormously. Bank statements, emails, contracts, approvals, invoices, and the sequence in which things actually happened are often more complete on your side than on the Crown's. That material should be preserved and given to counsel, never edited or deleted.
PARALLEL PROCEEDINGS
Civil Claims and Regulators
A fraud allegation rarely arrives on its own. There may be a civil action for the money, an employment termination and a wrongful dismissal claim, a regulatory investigation by a professional body or a securities regulator, and in some cases a freezing order over assets. These proceedings run on different timetables and to different standards of proof, and a step taken in one can seriously affect another.
The most common problem is compelled evidence. In a civil action a defendant must produce documents and submit to an examination for discovery. In a regulatory investigation there may be a statutory duty to cooperate. In the criminal case there is a right to silence and a presumption of innocence. Section 13 of the Charter provides protection against the later use of compelled testimony to incriminate a witness, but the interaction is technical and the sequencing needs to be managed by counsel who is looking at all of the proceedings together rather than at one in isolation. A stay of the civil action pending the criminal matter is sometimes available and is often worth seeking.
Restitution is the other point of intersection. Repaying money is generally the most powerful mitigating step available in a fraud case, and section 738 permits a restitution order at sentencing. But a repayment made without advice, particularly one accompanied by an explanatory message or an acknowledgement of wrongdoing, can hand the Crown an admission. Structure it through counsel, and do not negotiate directly with a complainant while a charge is outstanding.
SEARCHES AND RECORDS
Production Orders and Privilege
Fraud investigations are built on records obtained by compulsion. Sections 487.014 to 487.018 of the Criminal Code create production orders requiring a person, most often a financial institution or a telecommunications provider, to produce documents or data. Section 487 authorises search warrants for premises and devices. Each requires a sworn information to obtain establishing reasonable grounds, and each is reviewable under section 8 of the Charter on the basis that the information was insufficient, materially misleading, or that the authorisation was overbroad in the material it captured.
Overbreadth is a recurring issue in document cases. A warrant that authorises seizure of an entire business server or an entire email account inevitably captures material irrelevant to the investigation, and the courts have developed limits and protocols governing how such material is reviewed and what happens to the rest. Where privileged material has been seized, section 488.1 procedures and the common law require that it be sealed and determined by a court before anyone from the investigation reads it. If you believe solicitor-client material was caught in a seizure, raise it with counsel immediately.
The defence also has tools. Where relevant records are held by a third party and are not in the Crown's possession, an application can be brought for third party production. Where the Crown's forensic accounting relies on selected transactions, the underlying data can be sought so that the selection itself can be examined. Fraud cases are won on the completeness of the record far more often than on any single dramatic point.
SENTENCING
Restitution and Aggravating Factors
Section 380.1 lists aggravating factors specific to fraud, including the magnitude and duration of the offence, the degree of planning, whether the offender took advantage of the high regard in which they were held in the community, whether the offence had a significant impact on the victims given their circumstances, and failure to comply with regulatory requirements. Section 380.2 permits an order prohibiting the offender from having authority over another person's money or property, and section 738 permits a restitution order.
Large-scale frauds involving breach of trust generally attract penitentiary sentences. Smaller frauds, particularly those driven by personal circumstances rather than greed, and where restitution has been made, are more likely to be resolved with a conditional sentence, a suspended sentence with probation, or in narrow cases a conditional discharge. Every one of those outcomes is easier to reach where the defence has done its own accounting rather than accepting the Crown's figure.
Fraud matters may be handled by Lexaltico LLP or referred to experienced criminal defence counsel within our LexKonnect consortium, particularly where a lengthy document-heavy trial is expected. Any referral arrangement is disclosed to the client in writing before it takes effect and complies with Rule 3.6-6.1 of the Law Society of Ontario's Rules of Professional Conduct. The client's interests, not the referral, govern who should carry the file.
Common Questions
Frequently Asked Questions
What should I do if I am being investigated for fraud but have not been charged?
Retain counsel immediately and decline to attend an interview or hand over documents until you have advice. You are not obliged to explain yourself to investigators, and fraud interviews are recorded and used at trial. Preserve your records rather than deleting anything. Counsel can contact the investigator, establish what is alleged, and arrange a surrender if a charge is laid.
What must the Crown prove on a fraud charge?
Under section 380 of the Criminal Code the Crown must prove a dishonest act, being deceit, falsehood or other fraudulent means, and deprivation, meaning actual loss or the placing of the complainant's pecuniary interests at risk. It must also prove that you subjectively knew the act was dishonest and knew it could cause deprivation.
Is a business that failed and left debts a fraud?
No, not on its own. Insolvency, an unpaid loan or a venture that did not work out are civil matters. Fraud requires dishonesty known to the accused at the time, together with deprivation. Distinguishing an honest commercial failure from criminal dishonesty, using the contemporaneous documents, is central to defending these cases.
Will paying the money back end the charge?
Not automatically. The decision to proceed belongs to the Crown. Full restitution is highly relevant to sentence and can support a resolution, and section 738 allows a restitution order. Any repayment should be arranged through counsel, because payments accompanied by explanatory messages can themselves become evidence.
What is the difference between fraud over and fraud under $5,000?
Fraud over $5,000 under section 380(1)(a) is a straight indictable offence with a maximum of fourteen years, allows an election of trial mode and permits a preliminary inquiry. Fraud not exceeding $5,000 under section 380(1)(b) is a hybrid offence with a maximum of two years by indictment and is normally tried in the Ontario Court of Justice.
Is there a mandatory minimum sentence for fraud?
Only for large frauds. Section 380(1.1) of the Criminal Code prescribes a minimum of two years imprisonment where the total value of the subject matter of the offences exceeds one million dollars. Below that threshold there is no minimum, and the full range of sentencing options remains available.
How long do fraud cases take in Ontario?
Longer than most criminal matters, because disclosure often runs to thousands of documents that must be reviewed before any position can be taken. Two years is common in contested cases. R. v. Jordan sets presumptive ceilings of 18 months in provincial court and 30 months in the Superior Court of Justice or after a preliminary inquiry.
Can a fraud conviction be kept off my record?
A discharge under section 730 remains possible on smaller frauds where the court is satisfied it is in your best interests and not contrary to the public interest, particularly with full restitution and no prior record. On larger frauds involving breach of trust that outcome is unlikely, and the realistic goals shift to the charge itself and the sentence.
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Not legal advice
Everything published on this website is general information. It is not legal
advice, it does not take account of the facts of any particular situation, and reading it does not
create a solicitor client relationship. Do not act, or decide not to act, on anything here without
speaking to a lawyer licensed in your jurisdiction about your own circumstances.
Jurisdiction
These pages describe the law of Ontario, and of Alberta only
where a page says so expressly. They do not describe the law of any other province, territory or
country. Law that looks similar across jurisdictions frequently is not.
Currency of the law
Each page states the law as at the review date shown on it. Legislation is amended and case law
develops. A page accurate when written may no longer be.
Generality
These pages describe how a rule usually works. That is not the same as how it applies to your
facts. The exceptions are where most real matters live, and a page written for a general reader
cannot tell you whether you are inside a rule or inside its exception.
If you contact us
If you are in danger
If you or a child are in immediate danger, call 911.
This website is not an emergency service. Enquiries sent through a form here are read during
business hours and a reply may take up to one business day.
Using this website, submitting a form, sending an email or speaking to us on the telephone does
not make us your lawyers. That relationship arises only when the firm has
confirmed in writing that it has agreed to act, a conflict search has been completed, and a
retainer has been signed.
Confidentiality of enquiries
Do not send confidential or sensitive information through this website or by email until we have
confirmed in writing that we can act for you. Information sent before that point is
not treated as confidential and may prevent us from acting for you, or for
someone else, in a connected matter.
Response times
We aim to reply within one business day. Contacting us does not guarantee a reply within any
particular period, does not oblige the firm to act, and does not stop, extend or satisfy
any limitation period, filing date or court deadline.
Our telephone line
Our line is answered 24 hours a day, every day of the year. Outside office hours calls are taken
by our intake service, who record your details and pass them to the firm. A lawyer responds during
the next business day, or sooner if the matter is urgent. Answering the telephone is not the same
as giving legal advice, and no relationship arises from that call.
Who we are and how we are regulated
Law Society of Ontario
Lexaltico LLP is regulated by the Law Society of Ontario under the
Law Society Act, R.S.O. 1990, c. L.8. All lawyers practising in
Ontario through the firm are members in good standing.
Law Society of Alberta
Alberta matters are handled by lawyers licensed with, and in good standing with, the
Law Society of Alberta. A lawyer licensed in Ontario is not thereby licensed in
Alberta, and the reverse is also true.
Immigration regulation
Immigration consulting is provided by Regulated Canadian Immigration Consultants
in good standing with the College of Immigration and Citizenship Consultants under the
College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29,
s. 292.
Lawyers, paralegals and consultants
Not everyone at the firm is a lawyer.
Licensed paralegals in Ontario may act only within the scope the Law Society
permits, which does not include most family, estate or criminal matters.
Immigration consultants are regulated by the College, not by a law society,
and are not lawyers.
Law clerks and managers support files but do not give legal advice.
Each page and biography states which applies. Ask at the outset who will handle your matter and
under which licence.
Languages
We serve clients in thirteen languages. Every page of this website is written and published in
English. Where anything is provided in another language, the English
version governs in the event of a difference. If you need an interpreter, tell us when
you book and we will arrange one.
Fees
The initial assessment
The complimentary 15 minute initial assessment is a brief introductory
conversation. It does not include a review of your documents and does not constitute
legal advice.
The firm charges a fee for substantive consultations, including in civil litigation,
criminal defence and immigration matters. The firm may waive that fee at its discretion.
Any fee is disclosed in advance and credited in full toward your account if you retain the
firm.
Referral fees
Where we refer a matter to another firm, including through LexKonnect, we comply with Rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct. Any referral fee is set out in the Law Society’s standard referral agreement, signed by you before the referral proceeds, and no fee is payable to us unless and until the receiving firm has been paid for its work. You are never obliged to accept a referral and are free to retain any firm you choose. No referral arrangement affects the independent professional judgment of any lawyer at this firm.
What is published on this site
Calculators and estimators
They produce estimates from what you type and cannot know the rest. They do not
account for the terms of your contract, statutory exceptions, or the discretion a court will
apply. Do not make a decision on a number produced by a calculator.
Past results
Any outcome described happened on its own facts, before its own decision maker,
under the law as it stood at the time. Past results do not predict or guarantee the result of any
other case.
Reviews and testimonials
Reviews shown here are written by third parties and published on platforms we do not control. Each
describes one person’s experience of one matter. They are not a promise, a
prediction or a guarantee about any other matter.
Links to other websites
This site links to regulators, courts, government sources, professional associations and social
platforms, all operated by others. We do not control them, we are not responsible for
their content or accuracy, and a link is not an endorsement.
Other notices
Limitation periods
Failure to start a proceeding within the applicable limitation period may permanently bar
your claim. In Ontario the general period is two years from discovery
under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
Shorter periods apply to many claims. Seek advice promptly. Nothing on this website extends a
limitation period.
Accessibility
We aim to meet the Accessibility for Ontarians with Disabilities Act
and WCAG 2.1 Level AA. If any part of this site prevents you from reaching us, telephone
+1 416 333 6200 or write to
hello@lexaltico.com and we will provide the information
in another format, at no charge.
