As a criminal lawyer, people often ask me about theft charges and fraud charges. In these circumstances there are four kinds of charges that apply. They are similar in many ways, but they have some key differences.
Theft Under 5000 Dollars
This is where you are alleged to have taken something, the value of which is less than $5000. The most common form of “theft under” is shoplifting. It also includes things like auto theft of an old jalopy, pick-pocketing and thefts from employers.
Fraud Under 5000 Dollars
In a “fraud under” the circumstances are often the same as “theft under” but the difference is in how the crime is accomplished. For example, theft like shoplifting involves putting an item in your pocket and walking away with it, unbeknownst to the store and without their agreement. Changing the price tag from a $500 item to a $20 item results in depriving the store of $480, but they don’t even realize it; they may even process the payment at the cash register and send you on your way as though it was a legitimate transaction. Fraud is basically a situation where you do something dishonest to profit as opposed to simply taking an object. Writing cheques when you know the money isn’t there to cover the cheque is another example.
Theft Over 5000 Dollars
This involves stealing items or money of $5000 or more. It is uncommon except in dealing with cars or other valuables although theoretically if someone has a pile of cash lying around this could apply. This can sometimes apply to numerous smaller thefts totalling $5000 or more.
Fraud Over 5000 Dollars
This can happen in a number of ways. We commonly see this from people needing a lawyer for welfare fraud. Many thefts from employers also fall into this category.
Can I just pay the money back?
In all of these cases, paying the money back might form part of an agreement to resolve the case. However, this needs to be agreed to by the prosecutor. Why?
A theft or fraud is not a private dispute. What is a “private dispute”? For example, if you pay someone to do work for you, or buy a product and you pay them, but then there is a dispute if the work was not of the quality you had expected, or the product was not as advertised, there may be a civil dispute over money. These are dealt with through the civil courts.
A civil dispute becomes criminal if there was an intention from the person to deprive the other person of the money; that is where the fraud occurs.
To illustrate this example, consider a person who starts a business to shovel people’s driveways during the winter months. They take on 20 clients but the snow blower they purchased for their business just isn’t effective enough. This leads to delays in service and poor quality work. Many customers might be legitimately angry and demand their money back. If the business owner disagrees, this is a civil dispute.
However, if there is evidence that the person took money from the 20 homeowners with no intention to deliver the service, then that would be a fraud. Often the “criminal intent” or “mens rea” needs to be inferred from the circumstances since a person rarely admits or writes down their plan to defraud people.
Using the snow-removal example we can see how the criminal intention could be inferred. Taking on 20 clients with only a small snow blower suggests bad business acumen. However, if the person takes on 200 clients and they make no efforts to purchase any snow removal equipment (or hire employees) and the evidence is that they only own a single shovel then it’s clear the person intended to defraud the customers or was wilfully blind (wilful blindness is sufficient to establish the criminal intention).
Criminal Intention means the Crown Prosecutor is involved
Once the police lay a charge for fraud or theft, the Crown Attorney will take carriage of the file. As long as the Crown Prosecutor is of the opinion that there is a real prospect of conviction—a realistic chance they can prove that the matter was not merely a civil dispute—they will prosecute it.
If found guilty, a person will receive criminal penalties ranging from discharge or probation to a fine, house arrest, or real jail. Often a restitution order is included which means (in addition to serving the sentence) the person must pay the money back either as part of probation or in full at some point.
Now, sometimes in certain borderline cases, or where the money is a small amount, it is possible to negotiate with the Crown that if the money is repaid, the charges can be dropped or the penalty reduced dramatically.
There are numerous complexities to how this can be accomplished, so if you or someone you know has a theft or fraud charge, have them contact me for a free consultation.