Modèle:SentencingBrief PART VI - Fraud

PART VI: AGGRAVATING AND MITIGATING FACTORS IN THIS CASE(e)

[X] Section 718.2 obliges the sentencing judge to increase and decrease a potential sentence on consideration of the enumerated aggravating and mitigating features that go to the gravity of the offence and degree of responsibility of the offender. The section states the following:

Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances;
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1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4.

[X] Section 380.1 directs the sentencing judge to consider further circumstances for certain fraud-related offences:

Sentencing — aggravating circumstances

380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances:

(a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;

(b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market;

(c) the offence involved a large number of victims;

(c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;

(d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community;

(e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and

(f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

Aggravating circumstance — value of the fraud

(1.1) Without limiting the generality of section 718.2, when a court imposes a sentence for an offence referred to in section 382, 382.1 or 400, it shall also consider as an aggravating circumstance the fact that the value of the fraud committed exceeded one million dollars.

Non-mitigating factors

(2) When a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence.

Record of proceedings

(3) The court shall cause to be stated in the record the aggravating and mitigating circumstances it took into account when determining the sentence.

2004, c. 3, s. 3 2011, c. 6, s. 3

[X] In particular to this offence, the offence-specific factors found in s. XXX should be considered as well.

A. Gravity of Conduct

[consider the relationship of trust, the degree of physical or psychological harm]

B. Sophistication of the Offence

[X] The offence(s) in this case were [planned and continuous/spontaneous and impulsive]. ...

i. Large-scale Fraud is Not Spontaneous or Impulsive

[X] The commission of large-scale frauds is a "thinking" person's crime. That is to say that it is far from impulsive or spontaneous. It was observed in R v Tucker, [1988] N.S.J. 33 (NSCA): This is not a case involving one or two transactions but rather is one of a continued premeditated fraud perpetrated by a knowledgeable businessman and carried out over a lengthy period of time. General deterrence must be the paramount consideration because it is of the utmost importance for the public generally and the business community in particular to understand that those who practice fraud in commercial matters will be severely punished.

C. Vulnerability of Victim

i. Breach of Trust

[X] In addition to the common law, the Criminal Code codifies circumstances as aggravating under s. 718.2(a)(iii).

D. Responsibility and Moral Culpability of the Offender

E. Guilty Plea, Remorse, and Acceptance of Responsibility

F. Character and Risk to Re-Offend

G. Addiction and Mental Health

H. Prior Criminal Record and Repeat Offenders

It has been well recognized that the absence of prior record supports greater consideration of the principle of restraint. It may often mean the difference between incarceration and freedom. The circumstances of fraud will often provide some different considerations. This is for two reasons. A good reputation will often be instrumental to the offender's earning of trust that granted them access to the position that allowed them to commit the offence. The offences of fraud are not discrete one-time offences. They are persistent and repetitive. They are planned and deliberate. The reflect numerous choices to repeat and continue the criminal enterprise.

see R v Lee, 2011 NSPC 81 at paras 40 to 41

I. Effect on Employment, Family and Immigration

J. Prospects of Rehabilitation

K. Totality

L. Remand Credit