Fraud
Fraud is the offence under section 380 of the Criminal Code of, by deceit, falsehood, or other fraudulent means, defrauding the public or any person of any property, money, valuable security, or service. Fraud over $5,000 is straight indictable, with a maximum of 14 years. Fraud $5,000 or under is hybrid: summary maximum 2 years less a day, indictable maximum 2 years. Fraud is one of the most common white-collar offences in Canada.
Mass Tsang's criminal lawyers handle fraud files from low-end to mid-seven-figure matters. For more, see our blog post on fraud charges in Ontario.
Elements
The leading case on fraud is R v Théroux, 1993. The Crown must prove: (1) a prohibited act — deceit, falsehood, or other fraudulent means; (2) deprivation of the victim — actual loss or risk of loss; (3) the accused's subjective knowledge of the prohibited act; and (4) subjective knowledge that the act could have caused deprivation. The mens rea is subjective and can be satisfied by recklessness or wilful blindness about the prohibited conduct and its consequences.
Other fraudulent means
"Other fraudulent means" is broader than deceit or falsehood. It captures dishonest conduct that an ordinary person would consider dishonest — including non-disclosure of important facts where there is a duty to disclose, abuse of trust, and exploitative practices. The breadth of the category gives the Crown flexibility in capturing modern fraud schemes that don't involve straightforward lies.
Statutory aggravating factors
Section 380.1 lists aggravating factors specific to fraud: the magnitude, complexity, duration, and degree of planning; the impact on victims (especially vulnerable victims); failure to comply with regulatory rules; concealment or destruction of records; the offender's status (position of trust, professional licensure); and adverse effect on the integrity of financial markets. For fraud over $1 million, section 380.1(1.1) creates a presumptive aggravating factor.
Common fraud types
Common fraud prosecutions involve: investment and securities fraud; mortgage fraud; identity-related fraud; tax fraud (under the Income Tax Act and Excise Tax Act, often paralleled by Criminal Code charges); insurance fraud; benefits fraud; employee theft via false expenses or invoicing; and the Ponzi-style and affinity-fraud schemes that have attracted high-profile prosecutions.
Defences
Defences include: lack of subjective knowledge of deceit or its consequences; colour of right; lack of deprivation (no actual or potential loss); attribution issues in corporate or multi-actor frauds; and Charter issues with searches, wiretaps, and document seizures. Restitution before sentencing is often the single most effective sentence-mitigating step.
Related glossary terms
