- Brayden McDonald (Student Editor)
Book Review of “Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook”
Grace Hession David and Jonathan Shime’s “Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook” guides the reader through the unique complexities of a fraud proceeding. Grace Hession David has had a long and impressive career in criminal law in Ontario. She currently works with the Guns and Gangs Initiative as an Assistant Crown Attorney, prosecuting fraud and organized crime. Jonathan Shime has appeared before all levels of court in Canada, representing clients in criminal, quasi-criminal and regulatory matters of many kinds. He currently holds the position of an adjunct professor at the University of Toronto, and has done award-winning work in the legal field relating to persons with HIV. Both authors are respected and distinguished members of the Ontario Bar. The General Editors of the book, Brian Greenspan and Justice Vincenzo Roninelli, are both highly respected experts in the legal field and have received many accolades for their work in criminal law.
Fraud cases are notorious for their scope and complexity, and as the authors recognise, can be overwhelming for even experienced counsel. This handbook helps the reader to overcome these complexities through explaining the unique aspects and considerations of fraud cases in a highly organized and easily digestible manner. It delineates specific considerations that may arise at the various stages of a fraud proceeding, making note of applicable statute, jurisprudence, and evidentiary rules. The result is that the reader is provided with a roadmap which clarifies what needs to be done or considered at each stage of a fraud proceeding, enabling him/her to gain a workable foothold and begin advancing through the morass.
The entirety of the Handbook considers fraud from both Crown and defence perspectives, offering advice for both. The chapters of the Handbook follow the stages of a fraud proceeding chronologically. Chapter 1 deals with pre-charge considerations. On the Crown’s side, these largely include ensuring that there is sufficient evidence to proceed with a charge, and ensuring that there is an understanding of what has been discovered and what it means. On the defence side, the considerations are more wide-ranging, including potential ethical issues, how to plead in various situations, and the influence of other non-criminal factors, such as the possibility of civil proceedings or workplace investigations. Chapter 2 examines bail. This chapter is rather short. It sets out the law relating to bail, with reference to the leading cases, and considerations relevant to the determination of bail conditions.
The third chapter deals with disclosure in fraud cases. Fraud cases rely heavily on documentary evidence, and the volume of disclosure can be staggering. The authors offer a method for sorting through disclosed documents to decide what is important and what is not, as well as what may be missing. Time is also spent discussing the form of disclosure and what is required of the Crown, with reference to case law. While form of disclosure is generally within Crown discretion, there are limits to this discretion in that disclosure must be meaningful. What this means may depend on the circumstances. The end of the chapter discusses the use of experts. Counsel must be careful to choose an expert who is properly qualified, and then be prepared to work closely with said expert and with the client.
Chapter 4 delves into the offence of fraud proper. There is a detailed discussion of the elements required to make out the fraud offence. The authors present and explain several cases which speak to the nuances of both the actus reus and mens rea of the offence. Important recent developments reducing the burden of the Crown in demonstrating reliance are highlighted, as are other important aspects of assessing a case on its merits, such as how to differentiate fraud from negligent misrepresentation, the impact a client’s reliance on advice in committing the alleged acts, and how a reasonable doubt may be raised where a case lacks the “badges of fraud”. All of these are important factors in both the prosecution and defence of a fraud.
Chapter 5 deals with admissibility of documents. As mentioned above, documentary evidence is a large part of fraud cases. Thus, it is crucial that counsel understand the rules of admissibility of the documentary evidence that they plan to lead. The authors detail the rules of admissibility surrounding several types of documents, explaining the specifically applicable provisions of the Canada Evidence Act 1 and the ways in which they can be used. Notable issues include: when a witness will need to be called to authenticate a document, or when an affidavit is sufficient; financial institution affidavit requirements, and; the obligation to provide reasonable notice. Appended to the end of the chapter is an example of a financial institution affidavit.
The next three chapters deal with sentencing and post-trial issues, such as restitution and forfeiture. The sentencing chapter considers the statutory regime behind sentencing and all of the factors that go into the determination of an appropriate sentence in a fraud case. Included is a table of various fraud cases and the assigned sentences, for use as a basic reference tool. Chapter 7 deals with restitution, a discretionary order that can be made by the sentencing judge. These orders require offenders to pay back a given sum to their victim(s). Issues such as factors determining the issuance of an order, quantum and enforcement are examined, among others. Chapter 8 deals with forfeiture. Unlike restitution, forfeiture is technically independent of sentencing. It aims to deprive offenders of the financial benefit of their fraudulent activities by either seizing property obtained with illicit funds, or imposing a fine. The authors give a brief but thorough account of the relevant considerations and issues relating to forfeiture orders.
The remaining chapters deal with miscellaneous fraud topics. Chapter 9 explains the separate offence of criminal organization fraud. The material elements, actus reus and mens rea of the offence are explained and examined, in a similar fashion to chapter 4. This offence bears close links to corporate law. Also considered are the differences between criminal organization fraud and conspiracy, and sentencing issues.
The penultimate chapter looks at myriad other regulatory issues that may arise when a client is implicated in a fraud. If the client is part of a professional association, such as a provincial bar for example, charges can lead to career and employment consequences, in addition to criminal ones. This may also be true where a regulatory body becomes involved, or a client’s employer. Counsel must be alive to issues such as employer compelled statements, which could impact criminal proceedings, and to the potential for their client to lose their employment or suffer professional censure. It is important for counsel to understand the interplay between the criminal and regulatory spheres in order to properly advise their client, or to look for other sources of potential evidence.
The final chapter considers fraud-related offences. These include breach of trust and secret commissions. These offences are commonly alleged alongside fraud. Detailed explanations of these offences’ material elements, actus reus and mens rea are provided, including the relevant Criminal Code 2 provisions and jurisprudence. The section on secret commissions deals with both frauds on the government and secret commissions in the private sector.
The Handbook is an exceptionally useful tool. It provides effective guidance to enable a practitioner to navigate a very complicated and oft intimidating area of the criminal law. Throughout the book, the authors systematically and efficiently refer back to the relevant statutory and case law. Explanations are clear and concise, and often followed by reasoned advice on practical application. The authors often rely on lists, compiling relevant jurisprudence into a single table describing all the factors to be considered when approaching a particular issue. These tables and checklists make the Handbook particularly useful as a quick-reference guide. The authors also undertake a more holistic view of fraud, offering guidance that goes beyond the immediate criminal law concerns to include potential ethical, civil, regulatory and employment issues that counsel may face.
“Prosecuting and Defending Fraud Cases: A Practitioner’s Handbook”, by Grace Hession David and Jonathan Shime, is a superb tool for any counsel that may find themselves tackling a fraud proceeding. It is clear, informative and insightful, and organized to allow readers to access specific content quickly. Above all, this handbook is useful: the hallmark of any great practitioner’s guide.
1 Canada Evidence Act, RSC, 1985, c C-5.
2 Criminal Code, RSC, 1985, c C-46.