An offence under section 334 of the Criminal Code prohibits the taking or converting of anything from another person with fraudulent intent, and without colour of right, to deprive (temporarily or absolutely), use as security, part with it under a condition that you may be unable to perform or deal with it in a manner that cannot be restored to the condition it was at the time it was taken. Put simply, you may commit theft if you intentionally take anything not belonging to you for any period of time. Your intention to return the item is irrelevant.
Defences to theft charges arise when considering the requirements of “fraudulent intent” and “colour of right.” In other words, both requirements must be proven for you to be guilty of theft. These defences each entail an element of honesty. Whether you acted honestly without fraudulent intent or honestly believed you had the right to something are questions that require careful review of the evidence.
For example, if you acted on the orders of a superior and you honestly believed you were justified in these orders, you may be able to establish that you acted honestly. Further, colour of right refers to an assertion of a proprietary or possessor right to a thing, which may include an honest belief that you had the right to money when it was transferred to you, regardless of what your actual rights were.
An offence under section 380 of the Criminal Code essentially prohibits the dishonest deprivation of any property, money, valuable security, or any service. The core element is the concept of dishonesty, and the external circumstances consist of several elements.
It is important to understand that you do not have to ascertain any property, money, valuable security, or service to be guilty of fraud. The external circumstances only require a prohibited act of deceit, falsehood, or other fraudulent means. Further, it must only be established that you had knowledge of the prohibited act and that caring out the act could deprive another.
If you have been charged with Fraud, it is crucial that you seek legal advice immediately. A detailed review of the evidence is paramount when dealing the cases of Fraud as there are many elements to consider.
Theft – What is the difference between theft and fraud?
- Theft and fraud are very closely linked. Theft requires the intentional taking of something without the consent of another person. Conversely, fraud does not require the actual taking of anything. Its core element is dishonesty. It is the dishonest prohibited act, which could deprive another person, that is important. The intention to deceive another person for personal gain is where a careful review of the evidence is paramount.
Theft – What if I believed I had a right to the item I took?
- If you honestly believed that you had a right to whatever you took, you may raise this as a defence. Like most criminal cases, your honest believe that you had a right to something will required a through reviewed of the evidence against you and potentially your version of events.
Fraud – What if I did not obtain any item or benefit from my actions?
- You do not need to have obtained anything or benefit from someone to be found guilty of fraud. It is the intentional dishonest prohibited act that is important. Knowing that a prohibited act could deprive another person is what must be established by the evidence.
This blog is not intended for legal advice, please seek out a lawyer for criminal law advice.