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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. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

R. vs. A.V. – Vancouver Provincial Court

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

R. vs. T.B. – Vancouver Provincial Court

Charges: Indecent Act; Assault With a Weapon; Possessing of a Weapon for Dangerous Purpose (x2); Robbery; Uttering Threats; Theft of Property of a Value not Exceeding $5,000.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with prosecution of all counts; whether a jail sentence was appropriate.
Result: Mr. Johnston identified weaknesses in the evidence which persuaded the Crown there was no reasonable prospect of conviction on the Indecent Act charge.  Mr. Johnston persuaded Crown counsel  to resolve the case on three of the remaining counts and to stay all remaining charges. After hearing Mr. Johnston's submissions regarding our client's personal circumstances and his significant rehabilitation efforts,  the Court agreed to release our client from custody and to place him on a probation order with conditions supporting his rehabilitation. No further jail time.

R. vs. M.G. – RCMP Investigation

Charges: Possession for the purpose of trafficking.
Issue: Whether there was a substantial likelihood that Crown could establish that our client was a willing participant in the alleged drug trafficking scheme.
Result: Mr. Mines was able to provide information and persuade police to not seek any criminal charges against our client. No No charges were approved. Our client's vehicle was retuned. No criminal record.

R. vs. A.K. – New Westminster Provincial Court

Charges: Assault.
Issue: Whether there was a reasonable likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to provide additional information and persuaded Crown counsel stay the charge upon our client completing the Alternative Measures Program. No criminal record.  

R. vs. K.L. – Vancouver Police Investigation

Charge: Assault Peace Officer.
Issue: Whether there was a substantial likelihood of a conviction in this case which involved an alleged assault of a police officer.
Result: Mr. Gauthier provided information and a video to Crown counsel which showed that the police made an unlawful arrest thereby giving our client lawful grounds to defend himself. Mr. Gauthier was able to persuade Crown to not approve any charges. No criminal record.

R. vs. C.D. – Vernon Provincial Court

Charges: Assault with a weapon; Mischief to property.
Issues: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the criminal prosecution in this case where our client allegedly intentionally collided with the complainant's vehicle.
Result: Mr. Gauthier provided additional information to Crown counsel and was able to persuade Crown to resolve this matter with a s.810 Recognizance (Peace Bond).    

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.