Understand the Difference between Fraud and Theft from a Fraud Lawyer in Edmonton
In our society, fraud and theft are crimes with common elements as both have the element of the deprivation of property from another person. These two offences also require not just the act itself, but a specific intent to deprive someone of their property. The precise legal definitions of these offences are found under the Criminal Code of Canada. The distinctions between fraud and theft are what make their penalties different. If you are charged with theft or fraud in Edmonton, ensure you talk to a lawyer that specializes in fraud so you are able to understand the different circumstances behind this type of offence, and how you can prevent being convicted or have a criminal record.
What is Fraud?
Fraud is a property crime that refers to a situation where one uses deceit or trickery for an unfair advantage. The owner of the property mistakenly gives it to the fraudster because of a deceit or trick. As a result, the offence may be committed with the approval of the individual or organization being deceived. The deceit aspect of fraud may involve verbal, digital or paper misrepresentations causing the deprivation of the property. In other cases, the person may not realize that this type of crime has been perpetrated on them and the fraudster may not even have contact with the individual.
As with all criminal offences, there are two components that must exist: mens rea or the intent and actus reus or the act. For fraud to be established: the accused must intend to commit the fraud and actually unlawfully deprive the person of their property. A person committing a fraud will often hide their actions and so the offence is hidden at the time when the crime is committed and often remains undiscovered for some time. Examples of fraud are wide-ranging and includes:
- Bank embezzlement
- Credit card
- Bankruptcy; and
- Worker’s Compensation Board.
Examples of fraud are wide-ranging and include bank embezzlement, tax fraud, insurance fraud, credit card fraud, bankruptcy fraud and Worker’s Compensation Board fraud. A common example of fraud is when a bookkeeper, administrator or a treasurer fraudulently transfers funds from the organization into their own accounts for their personal benefit.
Without the proper checks in place, large-scale misappropriation could result, including cheque fraud, fictitious vendors and ghost employees for a period of months, if not years. This activity is characterized as a breach of trust and, a conviction of fraud involving a breach of trust will result in a much harsher penalty.
If the fraud is committed by unlawfully depriving a person of their property, the accused may also be charged with theft as they have stolen something by way of the fraud (more on the definition of theft below). A person may also be charged with an attempted fraud if they ultimately did not deprive the person of the property but intended to do so and took concrete steps to commit the fraud, but failed to carry it through.
The Criminal Code also has outlined very specific forms of fraud, such as the offences of:
- credit card fraud;
- possession of fraudulent or forged credit cards;
- possession of instruments to create forged credit cards; and
- theft of credit cards.
What is Theft?
Theft, by contrast, may be an offence as simple as when a person takes or steals something belonging to another without permission. A person will have committed a theft if they take something with the intention of stealing it and depriving the person who owns the property possession and control of their property.
As mentioned above, theft also has an intent element as well as an action. In order to obtain a conviction, the Crown must prove that the accused had a specific intent to deprive the person of their property and also the physical act of moving or taking the item without the knowledge of or permission from the owner and an awareness that the item belongs to someone else.
There are countless examples of theft. Some of the most common include: shoplifting, stealing merchandise or supplies from an employer, and stealing a motor vehicle. Theft can also occur in the form of robbery, which entails taking something from a person using force or the threat of force to do so.
Charges Under the Criminal Code
The charges for fraud and theft are outlined in the Criminal Code. Section 322 creates two categories for theft, which are theft under $5,000 and theft over $5,000. Theft of property valued under a $5,000 is a hybrid offence, which means the Crown has the discretion to choose to proceed by summary conviction or by indictment. Under a summary conviction offence, the maximum penalty for theft under $5,000 is a fine of up to $2,000 and imprisonment of six months or less. By indictment, the maximum penalty is a term of imprisonment of up to two years. Theft over $5,000 is always an indictable offence and is punishable by a jail term of up to ten years. The sentences for fraud are often generally higher than theft, depending on the circumstances of the specific case. The reason there are often higher penalties for fraud vs theft is that fraud usually involves greater planning and deliberation. This is an aggravating factor in sentencing.
Section 380 of the Criminal Code outlines the penalty for fraud. Fraud less than $5,000 is also a hybrid offence. A summary conviction of fraud less than $5,000 is comparable to theft of the same size and will attract a fine of up to $2,000 and up to a six-month jail term, while a jail term of two years or less will be imposed for an indictable offense. However, fraud over $5,000 is an indictable offence with a higher maximum sentence than theft of up to fourteen years imprisonment.
Both fraud and theft are serious property crimes. Due to the complicated evidence regarding the planning of a fraud, it is often the more complicated of the two to defend. One of the common defences to theft involving shoplifting, is that the accused did not realize he or she had the item and simply “forgot” to pay. This argument is common in shoplifting cases as it undermines the intent element of the offence by establishing that you did not intend to leave without paying for the item and therefore didn't have an intention to steal.
Another common defence used for theft is that the accused genuinely believed that he or she had the legal right to take the item (e.g., you may have thought the parts left over from processing an order at work was scrap material that would be disposed of at the curb anyway). This differs from believing you deserved to have the item or thought it was fair that you received it in that you genuinely believed that you were entitled to legally possess the item.
The success of any argument in a theft or fraud case will depend on the strength of the evidence and the circumstances of the case. Evidence in a fraud case usually involves the police gathering more evidence proving planning and deliberation to prove an intention to defraud another party.
It is critical to have a criminal lawyer experienced with theft and fraud in order to defend against such charges. It is important to select a lawyer that you believe can help you in having the charges withdrawn as quickly as possible or obtain a not-guilty verdict if the matter goes to trial. Even if you believe that you have done nothing wrong, speaking to the authorities instead of limiting communication through a lawyer can be damaging to your case.
Rod Gregory is a criminal defence lawyer in Edmonton who is experienced in theft and fraud cases. He has served many residents who have been convicted with this type of offence over the years in Fort McMurray, Alberta, and Western Canada including the Northwest Territories. If you’re looking for a fraud lawyer in the surrounding Edmonton area and beyond, contact Rod Gregory today.