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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. J.A. - Vancouver Provincial Court

Charges: Personation, Use of Forged Identity Documents, Resist Arrest.
Issue: Whether the search and seizure of the documents was an unlawful Charter breach.
Result: Mr. Mines was able to persuade Crown and the Court that, in all the circumstances, it was in the public interest to grant our client a conditional discharge without any reporting condition. 

R. vs. J.H. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm (domestic).
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to convince Crown counsel to enter a stay of proceedings just prior to the trial date. No criminal record.

R. vs. J.B. - ICBC Fraud Investigation

Charge: Theft Under$5000.
Issue: Whether there was a public interest in approving the charge.
Result: Mr. Johnson was able to persuade Crown counsel that there was no public interest in approving any charge whatsoever. No criminal record.

R. vs. M.K. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether it was appropriate for our client to be granted a conditional discharge.
Result: Mr. Mines was able to persuade the trial judge to grant our client a conditional discharge rather than the conviction that Crown counsel was seeking. No criminal record.

R. v. M.P. - Vancouver Provincial Court

Charge: Theft Under$5000.
Issue: Whether there was a public interest in approving the charge.
Result: Mr. Johnson was able to persuade Crown counsel that there was no public interest in approving any charge whatsoever. No criminal record.

R. vs. O.A. - Surrey Provincial Court

Charge: Assault (domestic). Issue: Given the lack of clarity…

R. vs. A.U. - Vancouver Provincial Court

strong>Charges: Sexual Assault; Assault; Theft Under; Breach of Undertaking.
Issue: Given our client's circumstances and the circumstances of the allegations, whether it was in the public interest for Crown to proceed with all charges.
Result: Mr. Mines was able to persuade Crown counsel to proceed only on the assault charge and to stay proceedings on all other charges. After considering Mr. mines' submissions, the Court granted our client a conditional discharge and placed him on probation for 12 months. No criminal conviction.

R. vs. V.P. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Police Officer.
Issue: Given some weakness in the assault with weapon charge and the rehabilitative steps our client had taken, whether it was appropriate for the Crown to seek the jail sentence they were originally seeking.
Result: Mr. Johnson was able to persuade Crown counsel to enter a stay of proceedings on the AWW charge and to jointly seek a conditional discharge on the assault police officer charge. No jail. No criminal conviction.

R. vs. S.K. - Surrey Provincial Court

Charges: Fraud Over $5000 (from Employer).
Issue: Given the civil settlement  we were able to obtain on our client's behalf, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson, after successfully negotiating a civil settlement with the complainant, was able to persuade Crown counsel to not approve the criminal charges that RCMP had recommended. No jail. No criminal record.

R. vs. D.M. - Vancouver Provincial Court

Charges: Impaired Driving; Driving Over .08.
Issue: Whether it was in the public interest for Crown counsel to proceed with the criminal charges.
Result: Mr. Johnson was able to persuade Crown to allow our client to resolve this matter by pleading guilty to a lesser offence under the Motor Vehicle Act. Our client received a driving prohibition and fine. No criminal record.

R. v. S.W. - Courtenay RCMP Investigation

Charges: Possession for the Purpose of Trafficking.
Issue: Whether the search of the vehicle and our client was lawful.
Result: Mr. Mines was able to steer our client through the investigation and made representations to police that the search was unlawful. Police declined to recommend any  charges. No criminal record.

R. vs. A.N. - Vancouver Provincial Court

Charges: Assault with a Weapon.
Issue: Given the rehabilitative steps we guided our client through, whether it was in the public interest for Crown to seek a conviction on this charge.
Result: Mr. Johnson was able to persuade Crown to permit our client to plead to the lesser offence of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. No criminal conviction.

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.