Canada: Minimum Mandatory Jail Sentence For Fraud Over C$1-Million

Copyright 2011, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on White Collar Crime, July 2011


Bill C-21, the Standing Up for Victims of White Collar Crime Act, received Royal Assent just prior to May's federal election. The Act introduces new sentencing provisions related to fraud, creating a two-year minimum sentence for fraud over C$1-million among other important amendments. The Act will enter into force on a date to be determined by order-in-council. These new sentencing provisions signal the clear intention of the Canadian government to impose more serious sanctions on those convicted of fraud.

In our Blakes Bulletin: Government of Canada Re-Introduces Bill Seeking to Create Mandatory Jail Sentences for White Collar Crime, we advised that Bill C-21 had been introduced on May 3, 2010. Bill C-21 was one of a number of justice initiatives debated in the last Parliament, and was promoted on the basis that the Canadian justice system had earned a reputation for being "soft" on investment fraud.

Bill C-21 was eventually passed with all-party support in the House of Commons and the Senate. In the course of the debate, many MPs told stories of individual constituents who had been the victims of fraud, with the names of Earl Jones, Vincent Lacroix and Bernie Madoff – and their now notorious crimes – mentioned on numerous occasions.

Details: Changes Made to Section 380 of the Criminal Code

As passed by both the House of Commons and the Senate, Bill C-21 makes a number of significant changes to section 380 of the Criminal Code (the Code), the general provision dealing with fraud.

  1. New section 380(1.1) of the Code will impose a minimum mandatory sentence of two years' imprisonment if the total value of the subject matter of the offence (or offences) exceeds C$1-million. While C$1-million appears on its face to be a large amount, one can readily see the frauds affecting the capital markets or the so-called Ponzi/pyramid schemes which have gained such high profile in recent years easily exceeding this amount.
  2. Section 380.1(1) of the Code will now require that a judge consider a number of new aggravating circumstances when handing down a sentence for fraud, namely the magnitude, complexity, duration, or degree of planning of the fraud; whether the fraud had a significant impact on the victims given their personal circumstances (such as age, health, and financial situation); the offender's failure to comply with applicable licensing rules or professional standards (for example, those for securities brokers, lawyers, or accountants); and whether the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud. These aggravating factors are, of course, in addition to those currently found in section 380.1(1), such as whether the offence involved a large number of victims. Most of these factors are already being considered by most sentencing judges, amongst many other factors; however, their codification likely gives them more prominence. Note that the changes to section 380.1(1) also require that the aggravating (and mitigating) circumstances taken into account by the court during sentencing be stated in the record.
  3. New section 380.2 of the Code will allow courts to impose a prohibition order in addition to any other punishment for the general offence of fraud. Such an order would prohibit offenders from seeking employment that involves having authority over the real property, money, or valuable security of another person. The length of any such prohibition order is left to the discretion of the sentencing judge.
  4. New section 380.3 of the Code will require the court to consider making a restitution order under section 738 or 739 of the Code if a person is sentenced or discharged under section 380 for fraud. The court is also obliged to ask the prosecutor whether victims of the offence were given an opportunity to indicate whether they were seeking restitution, and if a victim seeks restitution and the court declines to make an order to that effect, the court must give reasons for its decision in the record. These provisions may increase the frequency of restitution orders in Canadian fraud convictions, though critics are mindful that proceeds of fraud have often long disappeared by the time law enforcement authorities have been alerted to the situation. Nonetheless, a greater focus on restitution at the criminal proceedings stage is a recognition that a civil remedy for criminal fraud is often not a practical option for most victims of fraud due to high legal costs and relatively small losses at the individual level.
  5. New section 380.4 of the Code will provide that the sentencing judge may consider a written community impact statement, made by a person on a community's behalf, which describes the harm done to – or losses suffered by – the community as a result of the commission of the fraud. Unlike traditional victim impact statements, which must be considered under section 722 of the Code, the court's consideration of a community impact statement under new section 380.4 is discretionary. However, the use of "community impact statements" is a recognition that fraud negatively affects the public at large and not only individual victims. It results in a loss in faith and confidence in investment advisors and in the capital markets and undermines the efficiency of the economy.

What Could Have Been

Though the Act has undoubtedly increased the severity of the punishment for fraud under section 380 of the Code, it is not as harsh as some members of Parliament would have liked. The House of Commons committee that considered the bill declined to adopt amendments that would have eliminated accelerated parole review for white collar criminals and that would have made section 380(2) of the Code – fraud affecting the public market price of stocks, shares, merchandise or anything that is offered for sale to the public – subject to the two-year minimum mandatory sentence.


The passage of Bill C-21 represents yet another step in a now obvious trend by the Canadian government to treat white collar crime more seriously. Subject to sentencing guidelines, trial judges continue to have significant discretion in deciding the appropriate punishment in each case. However, the message that the government is clearly sending to trial judges is that in exercising this discretion, more significant consequences ought to be imposed on those who commit fraud.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.