Fraud (Offence)

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Fraud
s. 380 of the Crim. Code
Election / Plea
Crown Election Hybrid (under), Indictment (over, test.)
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. (over, test.), Prov. Court only (under)
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
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) same as summary
Minimum 2 years incarceration ($1 mill.+)
Maximum 2 years incarceration (under)
14 years incarceration (over or test.)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to fraud are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".

Pleadings
Offences under s. 380(1)(b) [value of $5,000 or less] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Offences under s. 380(1)(a) [Fraud Over $5,000] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 380(1)(a)
[fraud of $5,000 or less]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png
s. 380(1)(b)
[fraud over $5,000]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 380(1)(a) [value over $5,000], the accused cannot be released by police under s. 497 or 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice pursuant to s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an attendance notice or a summons without a s. 496 arrest, and if arrested, 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. The youth can also be released by an order of a judge or justice under s. 515.

When charged under s. 380(1)(b) [value $5,000 or less], 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.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a 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)).

A peace officer who charges a person under s. 380(1)(a) or (b) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
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 victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 380 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

Fraud
380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,

where the value of the subject-matter of the offence does not exceed five thousand dollars.
Minimum punishment
(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.
Affecting public market
(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. R.S., 1985, c. C-46, s. 380;
R.S., 1985, c. C-46, s. 380; R.S., 1985, c. 27 (1st Supp.), s. 54; 1994, c. 44, s. 25; 1997, c. 18, s. 26; 2004, c. 3, s. 2; 2011, c. 6, s. 2.


CCC

Proof of the Offence

Proving fraud under s. 380 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that the complainant owned something of value (property, money, valuable security, or a service)
  5. that the accused deprived the complainant of something of value or was put at risk of losing something of value
    1. Any false representations made
    2. money or property of value paid to the accused
    3. reason money was paid to the accused
  6. the ownership, value and continuity of the property, money, or service, including whether it is over $5,000 (for 380(a)) or under $5,000 (for 380(b)) (consider accordance with s. 491.2 and s. 657.1).
  7. that the deprivation must have been caused by deceit, falsehood, or other fraudulent means; (see Causation)
  8. the accused intended to defraud the complainant or had knowledge that the conduct could result in deprivation[2]
  1. R v Garrick, 2012 ONSC 725 (CanLII) at para 126 for fraud over
  2. see also R v McCarthy, 2008 CanLII 49582 (ON SC) at paras 12-20

Interpretation of the Offence

Deceit, Falsehood, or Other Fraudulent Mean

Jurisdiction

Generally, jurisdiction of the offence includes the place where a false representation was made, the false document was prepared or signed, or where deprivation took place.

In order to attract the jurisdiction of the court, there needs to be a significant portion of the activities making up the offence occur within the court's jurisdiction.[1]

Where the subject-matter is under $5,000 in value, the offence is an absolute jurisdiction offence and must be tried in provincial court.[2]

  1. Re Libman and R., 1985 CanLII 51 (SCC), [1985] 2 SCR 178
  2. see s. 553(a)

Proof of Property

Proof of Ownership

"Public or Any Person"

A "person" refers to an individual or legal person. It must be a specific victim or victims.[1]

A conspiracy to defraud the operators of retail stores with counterfeit money is a conspiracy to defraud the public.[2]

  1. R v Bernard, 2013 ONCA 371 (CanLII) at para 2
  2. R v Bernard at para 4

Admission of Documents

See also: Business Records and Financial Institution Records

The Canada Evidence Act provides short-cuts to admit certain documents.

Under s. 30(1), "where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record."

Under s. 30(7), the applicant must give "at least seven days notice" of intention to produce records under this section "unless the court orders otherwise" and must produce it for inspection within 5 days of getting notice from the other side.

Charter Issues
Documents that were obtained from the accused by compulsion by a person in authority, such as the Department of Community Services agent, is not a violation of the right against self-incrimination since the documents were not confessional and exist outside of state compulsion.[1]

  1. R v D'Amour, 2002 CanLII 45015 (ON CA), [2002] O.J. No. 3103, 166 CCC (3d) 477 (Ont. C.A.) - case worker compelled accused to provide T-4 slips

Other Issues

It is not necessary that the accused have any knowledge of the identity of the victim(s) of the fraudulent act.[1]

Parties
In a setting where there were multiple parties involved with the act that amounted to fraud, criminal liability will be applicable where the parties contribution is beyond a de minimus range.[2]

Merely following directions of a superior or employer is not generally a defence.[3]

Attempts
Under s. 660, where an completed fraud has not been made out the court must consider, as a matter of law, an alternative conviction for attempted fraud regardless of whether it is sought by the crown. [4]

Attempted fraud may apply where the victim discovers the deceitful conduct before being deprived of property or money.[5]

Form of Charge

Sufficiency of count relating to fraud
586. No count that alleges false pretences, fraud or any attempt or conspiracy by fraudulent means is insufficient by reason only that it does not set out in detail the nature of the false pretence, fraud or fraudulent means.
R.S., c. C-34, s. 515.


CCC

Proof of Property by Photographs
See photographic evidence - s. 491.2(1)

  1. R v Warren, 2010 NLCA 29 (CanLII) - accused didn't know that the fraud would peculate to a second victim, still convicted for second victim
  2. R v Park 2010 ABCA 248 (CanLII) at para 29
  3. R v Lemire, 1964 CanLII 52 (SCC), [1965] SCR 174
  4. R v Reis, 2003 MBCA 98 (CanLII)
  5. Reis, ibid.

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. 380), 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

History

See Also

References