Pre-Charge Considerations

• Author: Jonathan Shime/Ian Smith/Grace Hession David
• Pages: 1-33

1

Pre-Charge

Considerations

1

I. Introduction ............................................. 2

II. Pre-Charge Considerations from a Crown’s Perspective .......... 2

A. Review of the Police Investigation ...................... 2

B. Ex Parte Orders ..................................... 7

III. Pre-Charge Considerations from a Defence Perspective .......... 23

A. Pre-Charge Consultation .............................. 23

B. Ethical Considerations of Accepting a Retainer from

the Client .......................................... 24

C. Ethical Considerations of Accepting Documents from

a Client ............................................ 27

D. The Innocent Client .................................. 29

E. The “Less Than Innocent” Client ....................... 30

F. Show Them the Money ............................... 32

G. The Police Investigation .............................. 32

© [2021] Emond Montgomery Publications. All Rights Reserved.

2 Prosecuting and Defending Fraud Cases

I. Introduction

This is perhaps the only chapter of our book where we feel the considerations are

unique enough from the perspectives of the Crown and defence that we must clearly

delineate our thoughts into two categories.

First and foremost, the Crown is concerned with ensuring that there is a case and

that the proof required is already at hand so that a section 11(b)1 application does not

result in an early stay of the case. Frauds are unique because they need to be grounded

in documentation for the proof of deprivation; therefore, the need for a pre-charge

assessment of the case is perhaps the only time such a stringent pre-charge review

is required on the part of the Crown and perhaps even a forensic expert. It is well

known that banks and brokerage houses in the securities industry respond to produc-

tion orders and search warrants in a tardy fashion. With the new, firmly fixed post-

Jordan2 concerns serving as yet another matter for the Crown to consider in its busy

regime, time cannot be wasted post-charge waiting for replies.

Frauds are also unique in that the individual who may be the subject of a charge

will often have advance notice of an investigation and frequent contact with the au-

thorities. From this standpoint, defence counsel can enjoy the luxury of pre-charge

meetings and interviews with the client, which will ultimately lead to a more focused

defence, a more streamlined analysis of the case, and a better appreciation of the

jeopardy that the client may be facing.

II. Pre-Charge Considerations from

a Crown’s Perspective

A. Review of the Police Investigation

The Crown will want to review a police investigation of a fraud prior to the laying of

charges. This is because once the Information is sworn, the section 11(b) clock begins

to tick. If there are any issues with disclosure or hidden problems within the investi-

gation, it is imperative that these issues be resolved before the laying of charges, or the

time spent fixing them afterward could lead to a successful Charter challenge because

of delay. Furthermore, the Crown may find itself explaining the right to a speedy trial

to a group of unhappy fraud complainants. A thorough review of the file will allow the

Crown to ensure that the file is ready to prosecute and that more important issues,

such as the form of release that will be appropriate for the accused or the question of

whether he or she should be detained, can be addressed.

The following is a short recitation of the kinds of issues that need to be reviewed

once a police investigation comes to the Crown’s attention.

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being ScheduleB

to the Canada Act 1982 (UK), 1982, c11 [Charter].

2 R v Jordan, 2016 SCC 27.

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter 1 Pre-Charge Considerations 3

1. Is There a Fraud?

As strange as it may seem, there have been a few occasions where the police were con-

vinced that a fraud had occurred without having proved it through their investigation.

This can be a tricky situation, to say the least. Having read through the investigation,

the Crown must be convinced that there was a dishonest deprivation and that it can

be proven by means of the flow of funds or viva voce evidence. If the Crown is of the

opinion that either there has not been a fraud or the police have not proved it, the

recommendation is that the Crown meet with its lead investigator as soon as possible.

It is also recommended that the Crown prepare a written and dated memorandum

laying out its concerns. If the Crown is of the opinion that the investigation did not

prove the fraud, the Crown would be well advised to suggest options that could be

pursued and that may assist in the proof, if there are any. One must always be mindful

of the fact that there are often groups of individuals who may one day file complaints

against the authorities for not assisting in the recovery of their lost funds. Detailed

notes and diligent eorts to assist will ensure that the Crown will not be viewed as a

party that did not care.

If Crown counsel disagrees as to whether or not there is even a fraud, not only

should counsel explain the written and dated memorandum to the lead investigator,

but counsel should raise this issue with the deputy Crown attorney as well. A meeting

with a senior Crown counsel may assist in clarifying the issues, but the bottom line is

that Crown counsel’s supervisor should be made aware, as soon as possible, that the

Crown’s opinion diers from that of the police so that they can discuss strategies to

either pursue the investigation or shut it down if there is no reasonable prospect of a

conviction.

2. Parallel Investigations

Assuming that it is clear a fraud was committed and that the investigation has fol-

lowed the proper path, another reason to review the police file is to ensure that all of

the details for the proper proof of the fraud are in place. It is common for police forces

to rely very heavily on in-house investigations when the victim of the fraud is a large

institution, such as a bank or a brokerage house. In many cases, such investigations

will be thorough and carefully prepared. In other cases, however, the police will just

adopt this work and swear out a criminal Information that lays out the Criminal Code3

charges, and that will be where the investigation ends. The police are overworked,

and, like many of us, they do not want to reinvent the wheel. However, there are

often many considerations when a bank investigation or a regulatory investigation is

absorbed into a criminal prosecution. The rest of this section will deal with some of

the precautions that must be taken in such situations.

3 Criminal Code, RSC 1985, c C-46.

© [2021] Emond Montgomery Publications. All Rights Reserved.