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Theft or Fraud Over $5000

The Charge

People charged with the offence of theft or fraud over $5000 are in a serious situation because the Criminal Code no longer permits a jail sentence for these offences to be served conditionally, under house arrest, in the community.  Crown counsel will usually take the position that people charged with significant theft offences should be incarcerated; the greater the theft or fraud is, the more severe the sentence Crown will seek. Additionally, Crown will consider whether there are aggravating factors present – such as a breach of trust, the scope of the offence, or the amount of planning and deception involved. Where the value of theft is over $5000, the maximum sentence for a conviction is up to 10 years in prison; for fraud over $5000, the maximum sentence is 14 years in jail. Because people charged with theft or fraud over $5000 face such serious consequences, it is imperative that they seek the assistance of experienced defence counsel.

The Investigation

Every case is unique, but in the majority of the Theft/Fraud over $5000 cases that we see, our client has been accused of stealing from or defrauding a business associate, an employer or a client. Sometimes the complainant is an insurer. Rather than being confronted by police, it is often the business associate, client or employer that first accuses our client. Because this is not yet a police investigation, the accused person is not entitled to be advised of their right to a lawyer or to remain silent. The suspect in these cases certainly stands a good chance of incriminating themselves while trying to explain what they did. We certainly advise anyone who is being investigated for a theft or fraud over $5000 offence to call our office for advice at the earliest opportunity.

A person being investigated for theft or fraud over $5000 usually faces the prospect of both criminal charges and a civil action for recovery of the misappropriated funds. Where civil repayment is possible, we will attempt to settle the matter promptly with the goal of avoiding a criminal prosecution. Where clients are charged criminally, our goal is to negotiate a quick release from police custody and, where necessary, to obtain our client’s release from custody in court at a show cause (bail) hearing.

Recent Successes

R. vs. E.C. – Vancouver Provincial Court

Charges: Sexual Assault; Assault.
Issue: Given the rehabilitative steps we guided our client through, the nature of the sex assault itself and our client's true remorse, whether a jail sentence or house arrest were required.
Result: Mr. Mines was able to persuade Crown counsel to make a joint submission for a conditional discharge. After hearing Mr. Mines' submissions on our client's behalf, the trial judge granted our client the discharge. No jail or house arrest. No criminal conviction.

R. vs. N. O. – Courtenay Provincial Court

Charges: Assault Causing Bodily Harm x2; Assault x3.
Issues: Whether there was a substantial likelihood of a conviction.
Result: Mr. Gauthier was able to provide information to Crown counsel which cast the complainant's credibility and reliability into doubt. The Crown made an adjournment application which Mr. Gauthier opposed. Mr. Gauthier was able to persuade Crown to stay all of the criminal charges upon our client entering into a Peace Bond. No jail; No criminal record.

R. v. K.T. – Insurance Fraud Investigation

Charges: Fraud Under $5000.
Issue: Given our client's repayment of the alleged fraudulent health insurance benefit claims, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Mines was able settle the matter on our client's behalf and received a Release from the insurer ending the matter without any further civil or criminal proceeding. No charges were approved.

R. vs. A.H. – Vancouver Supreme Court

Charges: Sentence Appeal - Forcible entry; Assault with a weapon.
Issue: Whether the Supreme Court would uphold our client's conditional discharge that was granted to our client by the Provincial Court.
Result: After hearing Mr. Gauthier's submissions on this sentence appeal, the Supreme Court justice agreed with Mr. Gautier and ruled that the sentence was appropriate in all the circumstances. The court dismissed the Crown's appeal. The conditional discharge was upheld.

R. v. J.F. – Dawson Creek Provincial Court

Charge: Sexual Assault.
Issue: The credibility of the complainant's testimony during this three day trial.
Result: After vigorous cross examination of the complainant and another Crown eyewitness, Mr. Gauthier made submissions which were accepted by the trial judge. The court found our client to be not guilty and aquitted him of the charge. No jail. No criminal record.

R. vs. D.C. – Port Coquitlam Provincial Court

Charges: Sexual Assault (x2).
Issue: In the circumstances of these historic charges and our client's rehabilitation, whether a community based sentence was appropriate.
Result: Notwithstanding that Crown counsel sought a 20 month jail sentence, the trial judge agreed with Mr. Mines' submission that, in the circumstances of our client's genuine remorse and rehabilitation, it was appropriate to  grant a conditional sentence of 21 months. No jail.

R. vs. G.S. – North Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings, brining the matter to an end. No criminal record.

B.G. – Vancouver Provincial Court

Charge: Theft/Fraud Over $5000 (from employer).
Issue: Given the self rehabilitation and civil settlement made by our client, whether a non-custodial sentence was appropriate in this $60,000 theft from employer case.
Result: Mr. Gauthier was able to persuade the Court that the appropriate sentence was an 18 month community-based sentence with 6 months of house arrest. No jail.

R. vs. J.C. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest for Crown counsel to continue the prosecution.
Result: Mr. Mines was able to provide new information to Crown and was ultimately able to persuade Crown to enter a stay of proceedings. No criminal record.

R. vs. S.L. – Insurance Fraud Investigation

Charge: Fraud Over $5000.
Issue: Given our client's settlement of the fraud claim by paying funds back on a "without prejudice" basis, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the investigator to not forward any report for charge assessment. No charges were approved. No criminal record.

R. vs. K.A. – Surrey Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Whether the complainant and the Crown witnesses gave reliable and crdible evidence at trial.
Result: After vigorous cross examination, the trail judge accepted Mr. Gauthier's submissions that Crown counsel had failed to prove its case. Not guilty verdict. No criminal record.

R. vs. X.L. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether the information police provided to Crown counsel would cause Crown to conclude there was a substantial likelihood of obtaining a conviction.
Result: Mr. Mines provided information to Crown on our client's behalf. He was able to persuade Crown that our client was in fact the victim of an assault and was acting in self defence. No charges were approved. No criminal record.

The Defence

We are always happy to hear from clients at the earliest stage of a theft or fraud over $5000 investigation because we can offer these clients the very best potential outcome – the chance of no charges being approved at all. In our many years of defending financial crimes, we’ve learned that many complainants are more interested in recovering their loss than they are in pursuing a criminal conviction. In these cases, as well as those cases in which Crown has approved charges, our goal is to negotiate and obtain a civil settlement, which involves our client repaying the complainant on the complainant’s promise to provide a full release from any further civil liability. We find that in many cases, a complainant that has been compensated is no longer interested in pursuing criminal charges. In cases that do proceed, the courts will consider restitution and civil settlement to be mitigating factors upon sentencing.

Where Crown has approved theft/fraud over $5000, we have been successful in obtaining non-custodial sentences for our clients. For example, we have successfully persuaded Crown to break down “theft over” charges into a series of “theft under” charges so that a suspended sentence or conditional sentence became available.

In the event that the Crown’s case is very strong and it isn’t possible to negotiate a non-custodial sentence, we will prepare for trial to defend our client. Theft/Fraud over $5000 cases can involve fairly complex issues regarding the laws of evidence. We are well versed in the various technical rules of evidence as set out in the Criminal Code, the Canada Evidence Act and case law precedent. These rules involve the various requirements police and Crown must comply with when they seek to introduce business banking or other documentary evidence at trial. Our experience allows us to develop arguments at trial aimed at protecting our clients’ rights to have a fair trial as guaranteed by the Charter.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.