|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))
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-Charge, or Judge (varies on charge)|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||six months jail and/or a $5,000 fine|
|Minimum||2 years incarceration ($1 mill.+)|
|Maximum||2 years incarceration (under)|
14 years incarceration (over or test.)
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 History
- 8 See Also
Offences relating to fraud are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".
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.
On Attendance Notice
On a Promise to Appear
Undertaking or Recognizance
a Judge or Justice
on a PTA, Undertaking or Recog.
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
[fraud of $5,000 or less]
[fraud over $5,000]
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 order of a judge or justice pursuant to s. 515. A young person 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 an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The young person can also be released by 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 an 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.
- Reverse Onus Bail
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)).
- Fingeprints and Photos
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 criminal or regulatory prosecutions, 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
|AG Consent Required|
|s. 380(1)(b) [value $5,000 or less]
380(1)(a) [value over $5,000]
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.
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.
Draft Form of Charges
Proof of the Offence
Proving fraud under s. 380 should include:
Draft Jury Decision Trees
Interpretation of the Offence
Deceit, Falsehood, or Other Fraudulent Means
Generally, the 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.
Proof of Property
"Public or Any Person"
A "person" refers to an individual or legal person. It must be a specific victim or victims.
A conspiracy to defraud the operators of retail stores with counterfeit money is a conspiracy to defraud the public.
Admission of Documents
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.
It is not necessary that the accused have any knowledge of the identity of the victim(s) of the fraudulent act.
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.
Merely following directions of a superior or employer is not generally a defence.
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. 
Attempted fraud may apply where the victim discovers the deceitful conduct before being deprived of property or money.
- 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.
- Proof of Property by Photographs
See photographic evidence - s. 491.2(1)
- Abuse of Process
- R v Warren, 2010 NLCA 29 (CanLII), per White JA - accused didn't know that the fraud would peculate to a second victim, still convicted for second victim
- R v Park, 2010 ABCA 248 (CanLII), per Berger JA, at para 29
- R v Lemire, 1964 CanLII 52 (SCC),  SCR 174, per Martland J
- R v Reis, 2003 MBCA 98 (CanLII), per Hamilton JA
- Reis, ibid.
R v McCague, McCague, 2006 ONCJ 208 (CanLII), per Trotter JA
R v Wolf, 2008 ONCA 352 (CanLII), per curiam
- Wolf, ibid.
Participation of Third Parties
- 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