Forgery (Offence)

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Forgery
s. 367 and 368 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 10 years incarceration, 14 years incarceration (368.1)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to forgery are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 367 [forgery]
s. 368 [use, trafficking or possession of forged document] and
s. 368.1 [forgery instruments]
Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 367 and 368 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
When charged under s. 367 or 368, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

There will be a presumption of custody (reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

Publication Ban
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victim under s. 111 of the YCJA.

Offence Designations
Offences under s. 367, 368, and 368.1 are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Forgery
366. (1) Every one commits forgery who makes a false document, knowing it to be false, with intent

(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.

Making false document
(2) Making a false document includes

(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or
(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.

When forgery complete
(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.

Forgery complete though document incomplete
(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.

Exception
(5) No person commits forgery by reason only that the person, in good faith, makes a false document at the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government.
R.S., 1985, c. C-46, s. 366; 2009, c. 28, s. 7.


CCC

Punishment for forgery
367. Every one who commits forgery

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 367; 1994, c. 44, s. 24; 1997, c. 18, s. 24.


CCC

Use, trafficking or possession of forged document
368. (1) Everyone commits an offence who, knowing or believing that a document is forged,

(a) uses, deals with or acts on it as if it were genuine;
(b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine;
(c) transfers, sells or offers to sell it or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph (a) or (b); or
(d) possesses it with intent to commit an offence under any of paragraphs (a) to (c).

Punishment
(1.1) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) is guilty of an offence punishable on summary conviction.

Wherever forged
(2) For the purposes of proceedings under this section, the place where a document was forged is not material.
R.S., 1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s. 25; 2009, c. 28, s. 8.


CCC

Forgery instruments
368.1 Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, or is guilty of an offence punishable on summary conviction, who, without lawful authority or excuse, makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses any instrument, device, apparatus, material or thing that they know has been used or know is adapted or intended for use by any person to commit forgery.
2009, c. 28, s. 9.


CCC

Proof of the Offence

Proving forgery under s. 366, 367 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit made or altered a document;
  5. the document made or altered was a "false document";
  6. the culprit knew the document was false;
  7. the prohibited act was "with intent" that either:
    1. "it should in any way be used or acted on as genuine, to the prejudice of any one"; or
    2. "a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything" and
  8. the making was not in "good faith" at "the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government".

Proving using, trafficking or possessing forged documents under s. 368 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the document was of monetary value;
  5. the document was a "forged" document;
  6. the culprit knew the document of some monetary value was forged;
  7. the culprit either:
    1. uses, deals with or acts on a document as if it were genuine
    2. causes or attempts to cause any person to use, deal with or act on a document as if it were genuine;
    3. transfers, sells or offers to sell a document or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph 368(a) or (b); or
    4. possesses the document with intent to commit an offence under s. 368(a) to (c).

Proving forgery instruments under s. 368.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses" a thing;
  5. the thing is an "instrument, device, apparatus, material or thing that ... has been used or ... is adapted or intended for use ... to commit forgery."
  6. the culprit knew that the item had been used for, adapted or intended for use to commit forgery; and
  7. the culprit had no "lawful authority or excuse" to do the prohibited conduct.

Interpretation of the Offence

Actus Reus
Only the party named on a cheque may endorse it to another person. Anyone else who endorses a cheque payable to someone else is committing the act of forgery.[1]

Mens Rea
The mens res for forgery under s. 366(1) requires an "intent to deceive" which requires an intent that is more than mere "carelessness or negligence". The intent to deceive should generally "be coupled with an intent that the document be used to someone’s prejudice, or that a person be induced to act in a certain way." Prejudice need not result as long as there was an intent for the document to be treated as genuine.[2]

The Crown must show the "falsity of the endorsement the document has been shown to be a forged document and its use with knowledge is sufficient to show the commission of the offence."[3]

The accused must have known that "the document was false and intended for somebody to act upon it as if it was genuine.".[4]

It is not necessary that the accused "intended" to defraud anyone.[5]

"False documents"
A fake or false item that was made as a "novelty" item cannot be a "false document" and the creation of which does not carry the requisite mens rea for the offence.[6] The document cannot simply be "false" but it must be proven to be "false" in relation to the purpose for which it was created.[7]

"False document" and "forged document" are not interchangable terms.[8]

Uttering vs Forgery
Uttering forged documents is distinct from making forged documents. The "forgery" is the making of the document, the "uttering" is the use of the document.[9]

  1. R v JJV, 1994 CanLII 6514 (NB CA)
  2. R v Benson (M.) et al., 2012 MBCA 94 (CanLII)
  3. R v Elkin (1978), 42 C.C.C. (2d) 185 (B.C.C.A.)
  4. Sebo, [1988] A.J. No. 475 (C.A.)
  5. R v Atwal, [2015] O.J. No. 3748 (C.J.)
    R v G.T., 2016 CanLII 82183 (NL PC) at para 59 per Gorman PCJ
  6. R v Sommani, 2007 BCCA 199 (CanLII)
  7. R v Benson, 2012 MBCA 94 (CanLII) ("it must be false in relation to the purpose for which it was created")
  8. R v Hawrish, [1986] S.J. No. 846 (C.A.)
  9. Benson, supra at para 33
    R v Wightman, [2003] A.J. No. 1453 (P.C.) ("Forgery deals with the making of the document; uttering deals with the use of the document.")

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 367, 368, 368.1), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 367, 368 and 368.1 Summary Election six months jail and/or a $5,000 fine
s. 367 and 368 Indictable Election 10 years custody
s. 368.1 Indictable Election 14 years custody

Offences under s. 367 and 368 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.

Offences under s. 368.1 are hybrid. If prosecuted by indictment, the maximum penalty is 14 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 367, 368 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 368.1 Summary Election OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 368.1 Indictable Election X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Forgery (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 366, 367, 368, 368.1

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments

1997 to 2009

Forgery
366. (1) Every one commits forgery who makes a false document, knowing it to be false, with intent

(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.

Making false document
(2) Making a false document includes

(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or
(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.

When forgery complete
(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.
Forgery complete though document incomplete
(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.
R.S., c. C-34, s. 324.


CCC

Uttering forged document
368. (1) Every one who, knowing that a document is forged,

(a) uses, deals with or acts on it, or
(b) causes or attempts to cause any person to use, deal with or act on it,

as if the document were genuine,

(c) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(d) is guilty of an offence punishable on summary conviction.

Wherever forged
(2) For the purposes of proceedings under this section, the place where a document was forged is not material.
R.S., 1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s. 25.


See Also